Opinion
Department Two
Appeal from a judgment of the Superior Court of Lassen County.
COUNSEL:
Olney, Chickering & Thomas, Chickering, Thomas & Gregory, and Goodwin & Dodge, for Appellant.
A. L. Shinn, for Respondent.
JUDGES: Vanclief, C. Searls, C., and Belcher, C., concurred. McFarland, J., De Haven, J., Fitzgerald, J.
OPINION
VANCLIEF, Judge
The complaint consists of three counts, each for the recovery of a specific sum of money on an alleged distinct cause of action.
The action was commenced in the county of Lassen, and the summons was served on the defendant in the city and county of San Francisco on the twenty-ninth day of August, 1891.
On the twenty-eighth day of September, 1891, the defendant filed a demurrer to the complaint on the grounds of misjoinder of causes of action, and that the complaint does not state facts sufficient to constitute a cause of action against the defendant. On November 3, 1891, on motion of plaintiff's attorney, the court ordered that the demurrer be "stricken from the files of the court, for the reason that it had not been filed in time." On November 4, 1891, the default of the defendant was entered, and judgment rendered in favor of plaintiff for the full sum demanded, viz., four thousand five hundred and eighty-nine dollars. This appeal is from the judgment, and comes here upon the judgment-roll alone. The roll contains a copy of the demurrer indorsed filed by [33 P. 271] the clerk as above stated, and shows no other disposition of it than the order striking it from the files. The appellant's counsel contend that the court erred in thus disposing of the demurrer, and that defendant was not thereby put in default; and, consequently, that the judgment by default was unauthorized by law; and I think this point should be sustained. A similar point was carefully considered 417 and decided in the case of Larco v. Casaneuava , 30 Cal. 565, under section 50 of the Practice Act, which then read as follows:
" Sham and irrelevant answers and defenses, and so much of any answer as may be irrelevant, redundant, and immaterial may be stricken out on motion."
The principal question as to the construction of that section was whether the word "defenses" included demurrers; and it was held that it did not. The corresponding provision of the Code of Civil Procedure omits the word "defenses," and reads as follows:
" Sec. 453. Sham and irrelevant answers, and irrelevant and redundant matter in a pleading may be stricken out."
In the part of this section relating to irrelevant and redundant matter, however, the word "pleading" is substituted for the word "answer" in the Practice Act. While there is no doubt that the word "pleading" includes demurrers, and that irrelevant and redundant matters may be inserted in demurrers, yet a demurrer stating only one or more of the grounds enumerated in section 430 of the Code of Civil Procedure, as in this case, contains nothing irrelevant and nothing redundant; nor is it claimed that it does. And since the record shows that the demurrer was filed within thirty days after the service of summons, it appears that the ground upon which it was stricken out, namely, that it "was not filed in time," is not true. But it is contended for respondent that inasmuch as the demurrer was stricken out, it constitutes no part of the judgment-roll, and therefore cannot be looked to for the purpose of ascertaining when it was filed. But notwithstanding the order striking it out, the demurrer was a pleading in the case, and therefore constitutes a part of the judgment-roll. (Abbott v. Douglass , 28 Cal. 296.) To the objection that the record shows no exception to the order striking out the demurrer, the answer is that the law deems that such an order was excepted to. ( Code Civ. Proc., sec. 647.)
Finally, it is claimed that the demurrer may have been stricken out on the ground that it had not been served, since the record does not show whether it had been served or not; but the only other possible valid grounds are those stated in section 453 of the Code of Civil Procedure, namely, the insertion in the demurrer of irrelevant or redundant matter, which, as above shown, is negatived by the record.
I think the judgment should be reversed, and the court below directed to restore the demurrer to the files, and to proceed to dispose of it according to its merits.
For the reasons given in the foregoing opinion the judgment is reversed, and the court below is directed to restore the demurrer to the files and to proceed to dispose of it according to its merits.