Dalzell v. Kelly

BARNARD, P. J. This is an action for damages, in some form, the precise nature of which does not clearly appear. The complaint was filed on November 4, 1949. A general demurrer was filed on November 15, and an amended demurrer on November -17. On November 25, the plaintiff filed notice of a motion to strike the amended demurrer. On November 28, the motion to strike was denied and the demurrer was sustained with 30 days in which to amend. On January 3, 1950, an amended complaint was filed. On the same day, January 3, a general and special demurrer was filed. On [67]January 16, 1950, the demurrer to the amended complaint was sustained with 20 days in which to amend.

On February 8, 1950, the plaintiff filed notice of four motions: (1) to direct the clerk to file a motion to strike the demurrer and a motion to enter the default of the defendants (claimed to have been sent to the clerk on January 12); (2) to vacate the ruling on the demurrer; (3) to enter the default of the defendants; and (4) to amend the ruling on the demurrer to show which of the “demurrer points” was sustained. These motions were heard on February 14, 1950, and an order was entered on March 13, 1950, granting the first motion by ordering these papers filed nunc pro tunc as of January 17, and denying the other three motions. The plaintiff declined to amend and a judgment of dismissal was subsequently entered. This appeal is from that judgment.

The appellant contends that the court committed reversible error (1) in denying his motion to strike the amended demurrer ; (2) in sustaining the amended demurrer; (3) in directing the clerk to file his motions to strike and to enter default as of January 17, instead of as of January 12, the date it was mailed; and (4) in refusing to strike the demurrer to the amended complaint and to enter the default of the defendants. He states that he relies “primarily” on the fourth point.

The first two of these points relate to the amended demurrer to the original complaint. Assuming, but not holding, that there was any possible error in this connection it was waived by filing the amended complaint. (Metzenbaum v. Metzenbaum, 86 Cal.App.2d 750 [195 P.2d 492].) The other two points are based on the contention that the court had, on December 27,1949, given the defendants until January 11, 1950, to answer; that this gave them no right to demur-, and that it necessarily follows that the default of the defendants should have been entered on January 12, 1950. Aside from other considerations, there is nothing in the record to sustain this contention. No order of court extending time appears. The amended complaint was not filed until January 3, 1950, and the demurrer was filed the same day. No reason appears for striking the demurrer or for entering a default. This would be equally true if the motions to strike the demurrer and enter the default had been actually filed on January 12, 1950. The record discloses no error in this connection, and no conceivable prejudice.