Heilbron v. Oampbell

FOX, J. This was an application for a writ of prohibition. Upon the return of the alternative writ, the respondent [746]demurred to the petition, and at the same time filed an answer. Argument was had upon the demurrer, but in the decision thereon, which was filed December 28, 1889, reference was made to the fact that a certain allegation in the petition and writ was not denied, and the decision is open to the construction that it was made upon the pleadings generally, and not simply upon the petition or writ, and the demurrer thereto. Although not so stated in terms, the legal effect of that decision was to overrule the demurrer, and give final judgment in favor of the petitioner. That judgment, in our opinion, was entirely correct upon the petition or writ and demurrer, as the legal effect of the latter was to admit the truth of allegations of the former. But an answer was in, the sufficiency of which was unchallenged; and there was no motion for judgment on the pleadings, putting the respondent upon notice that his answer was insufficient to constitute a defense. In the briefs filed after the argument, petitioner expressly claims that the hearing is upon respondent's demurrer only, and not upon the pleadings generally. It may well be that under these circumstances a final decision of the whole case was, in law, a surprise to the respondent. He has now, and in due time, moved the court to vacate the decision then rendered, pass upon the demurrer directly, and, if overruled, to allow him to file an amended answer in the cause, a draft of which, duly verified, he has deposited with the clerk of this court. This motion is made on affidavit, and on the ground of surprise. We think he is entitled to this relief, and to be heard upon the merits of the cause. It is therefore ordered: (1) That the judgment rendered in this cause on the twenty-eighth day of December, 1889, be, and the same is hereby, vacated and set aside; (2) that the demurrer of the respondent to the petition heretofore filed in this cause be, and the same is hereby, overruled; (3) that the amended answer of respondent, now deposited with the clerk of this court, be filed as and for his answer in the cause, and that, if not already done, a copy thereof be served upon attorneys for petitioner within ten days from the filing of this order; (4) that this cause be placed upon the bank calendar of this court for the May term, 1890, at Sacramento, for such further proceedings as the parties may then desire to take therein; (5) that, until the further order of this court in this cause, the respondent, J. B. Campbell, judge of the superior court of the state of