Wall v. Heald

Belcher, C. On the thirteenth day of January, 1891, this action was commenced in the superior court of San [366]Diego County, to recover the amount due on a promissory note. On the thirtieth day of the same month, a general demurrer to the complaint was filed, signed “E. W. Hendrick, attorney for defendant.” On the 27th of February, the demurrer was overruled, the minute entry of the order being as follows: “ Parties being present by their respective attorneys, the demurrer of defendant to plaintiff’s complaint is at this time overruled for want of oral presentation, and ten days given defendant in which to answer.” No written notice of this order was ever given to or served on the defendant or his attorney. On the 10th of March, no answer having been filed, the clerk of the court entered the default of the defendant, and a judgment against him as prayed for in the complaint. On the 9th of June, an execution was issuéd on the judgment and levied on the property of defendant. On the 24th of July, the defendant moved the court to set aside the default and judgment, and to recall the execution, on the ground that the default and judgment were entered, and the execution issued, without authority and in violation of law, because no notice of the order overruling his demurrer had been served on him or his attorney, or waived by him or his attorney, and because, when a demurrer has been overruled and time given to answer, the clerk has no authority to enter a default or judgment without an order of court directing him to do so. In support of his motion, the defendant offered and read in evidence the judgment roll in the case, and in opposition thereto, the plaintiff offered and read from the minutes of the court the order overruling the demurrer and an affidavit made by one Harry J. Neale. In this affidavit the affiant stated that he was one of the attorneys for the plaintiff in this case, and was present in court on the twenty-seventh day of February, 1891, which was the regular day for the call of the court’s law and motion calendar, and that this case was upon the said calendar, pending upon the defendant’s demurrer to the complaint; “ that E. W. Hendrick, Esq., was and still is the attorney of record for the defendant herein, [367]and was present in court upon said day at the call of said calendar; that when said demurrer was called, affiant answered the same ‘ready ’; that when the said demurrer was called for argument, the said E. W. Hendrick stated to the court that he did not desire to argue the same, whereupon the court announced that the said demurrer was overruled for want of oral presentation; that said Hendrick then stated that the defendant would take the usual time to answer, or words to that effect, to which the court assented.”