Barron v. Deleval

Morrison, C. J.: On the 23d day of October, 1879, plaintiff brought his suit in the District Court of San Diego County, to foreclose a mortgage on certain real estate situate in the City of San Diego, and on the 24th day of the same month a demurrer to the complaint was filed on behalf of the defendant. This demurrer was signed by “ E. W. Hendrick, attorney for defendant and at the time of the filing thereof, it was duly stipulated that it should not be taken up or disposed of, for sixty days. On the 26th day of December, 1879, another demurrer to the complaint was filed by one A. B. Hotchkiss, “attorney for defendant,” but how he became such, in the place of the original attorney, Hendrick, does not appear in the transcript. On the 30th day of December, 1879, the following order was made by the Court: “ Defendant’s demurrer to plaintiffs complaint overruled, and five days allowed defendant to answer.” It does not appear which of the two demurrers was overruled, but no point is made that they were not both overruled, and therefore the matter is of no consequence. On the 7th day of January, 1880, the five days allowed the defendant to answer having expired, and no answer having been filed, the default of the defendant was entered, and a decree was made, foreclosing the mortgage. No notice in writing was given of the overruling of the demurrer, but it appears from the bill of exceptions that “ the defendant was present in Court by his attorney of record upon argument and ruling on the demurrer, and upon the same being overruled, requested of the Court time to answer, and five days time to answer was granted.” The only point made upon this appeal is on the question of notice.

Section 476 of the Code of Civil Procedure provides that “ when a demurrer to any pleading is sustained or overruled, and time to amend or answer is given, the time so given runs from the service of notice of the decision or orderand § 1010 of the same code provides that “ notices must be in writing.” This notice was not given, and the question is, was the giving of such written notice required, under the facts disclosed by the record in this case ?

[97]It is contended on behalf of the respondent that the appellant waived his right to a written notice by applying to the Court for leave to answer; and it is important to remark in this connection, that when the demurrer was overruled it was within the discretion of the Court either to grant leave to answer, or to order a final judgment in the case.

By § 472 of the Code of Civil Procedure, it is provided that “when a demurrer to a complaint is overruled, and there is no answer filed, the Court may, upon such terms as may be just, allow an answer to be filed;” and in the case of Seale v. McLaughlin, 28 Cal. 672, the Court say: “There was no error in entering judgment for want of an answer upon the overruling of the demurrer. ‘When a demurrer to a complaint is overruled, and there is no answer filed, the Court may, upon such terms as may be just, and upon payment of costs, allow an answer to be filed.’ (Pr. Act, § 68.) But it does not follow that it must in all cases be done. Ordinarily, the Court should doubtless allow an answer to be filed where the demurrer has been interposed in good faith, Avith some ground for supposing that it would be sustained. But in this case no leave Avas asked to file an answer, and the demurrer was manifestly frivolous, and confessedly put in to obtain time, Avithout any intention to rely upon it. Under the circumstances there was, it is true, no improper use intended or attempted to be made of it by the attorneys who put it in. But there was no error in entering judgment upon overruling the demurrer thus interposed.”