202 P. 483 | Cal. Ct. App. | 1921
This is an appeal from a judgment entered pursuant to default. The printed transcript on appeal shows, among others, the following papers and minute orders: The complaint; a demurrer to the complaint; an order overruling that demurrer; the answer; an order striking the answer from the files, with which is incorporated an order granting leave to file a supplemental complaint and an order granting leave to file an amended answer; an amended and supplemental complaint; the entry of default; and a judgment by default, by the clerk of the court. The amended and supplemental complaint, which was filed June 2, 1920, was introduced by the statement that its filing was upon leave of court. Included with the order giving leave to file a supplemental complaint, there was, as we have observed, an order granting leave to file an amended answer. The time allowed for that purpose by the order was three days. The defendant having filed no answer to the amended and supplemental complaint, his default was entered on June 7th and a judgment on the default was rendered June 8th and was entered June 10th. If we are to take all these matters as they appear in the printed transcript, and are to construe the leave to file an amended answer within three days as an order shortening the time to answer the amended and supplemental complaint, it is apparent that defendant's time to answer had expired when the default was entered.
[1] It is contended that we may not look to that part of the order fixing three days' time within which an amended answer might have been filed, the appeal being prosecuted on the judgment-roll alone and there being no *661
bill of exceptions. This point is based on section
[2] Disregarding, then, the order printed in the transcript allowing appellant three days within which to file an amended answer, the record shows that the default was entered on the fifth day after the service and filing of the amended and supplemental complaint, while the judgment was rendered the sixth day and entered the eighth day after that event. Appellant insists that this state of the record shows that the default was erroneously entered and the judgment erroneously rendered, and in doing so places its reliance on Bedan v.Turney,
There is a feature of the record to which we have not referred in our statement of its contents. The judgment rendered by the clerk recites that, among other things, defendant's *663
"legal time for answering having expired," the judgment against it is "hereby rendered," etc., and the statement showing the entry of default also recites that the time for answer had expired. In the case of a judgment by the court, such a recital would be conclusive on appeal (Catanich v. Hayes,
Judgment affirmed.
Finlayson, P. J., and Craig, J., concurred.