95 P. 907 | Cal. Ct. App. | 1908
Lead Opinion
An action in forcible entry. The statement of facts in this case will be found in the decision rendered by this court September 24, 1907, post p. 713. We are satisfied with the views expressed in that opinion, except what is said as to the intendment declared to exist in support of the judgment.
The bill of exceptions contained in the record was treated as if entitled to be considered only in connection with the motion of appellant for relief under section
Respondent, upon the rehearing, again urges that a distinction should be drawn between an action of forcible entry and an ordinary civil action in considering the question presented by the appeal. The question is one of practice, and, unless otherwise provided in the chapter relating to forcible entry and unlawful detainer, must be determined by the general rules of practice in civil actions. (Code Civ. Proc., sec. 1177.) The particular question here involved is not covered by a statutory rule relating to either class of cases. An answer was filed after the expiration of the time provided by law. It was not stricken out before default was entered. The power to enter judgment does not depend in either case upon the entry of the default. Jurisdiction to enter the judgment is acquired by service of process in both cases, and the defendant in either may, at the discretion of the court, be relieved from a default and permitted to answer after the expiration of the time given by statute for that purpose. A reason from which a distinction might be drawn on account of the summary character of the action is apparent, but the statute provides that the general rule shall be followed in all instances for which express provisions are not made in the chapter relating to the special proceeding. In the absence of the special provision, we must be governed by the general rule declared in an ordinary civil action, which is that the default should not be entered until the answer shall have first been stricken from the files. (Bowers v. Dickerson,
Judgment reversed and cause remanded.
Allen, P. J., and Shaw, J., concurred.
The following is the opinion rendered upon the former hearing, September 24, 1907, which was approved in the foregoing opinion with the exception therein stated: *713
Addendum
This is an action of forcible entry under section
Complaint was filed December 20, 1906, and summons thereupon issued directing the defendants to appear and answer on or before December 26, 1906. On the latter date attorneys for defendants served plaintiff's attorneys and filed with the clerk notice of their appearance for defendants. On the same day an order of court was made giving them three days in addition to the time fixed in the summons in which to plead. On the thirty-first day of December, 1906, and prior to any other or further proceedings in the case, defendants filed with the clerk of the court their verified answer. At the time of such filing no default had been taken against defendants or either of them. Thereafter, and on the same day, and when plaintiff's attorneys were in court and about to proceed with the introduction of testimony in said action, they were served with a copy of the said answer so filed as above stated. Attorneys for defendants thereupon called the attention of the court to the filing of the answer and objected to the introduction of any testimony, for the reason that the case was at issue and had not been regularly set for trial, and that they had no notice of trial under section
Plaintiff asked that the default of defendants be entered and that the testimony of plaintiff's witnesses be heard, upon the ground that the time for the filing and serving of said answer had expired before the same had been filed. Defendants then asked leave of the court to prepare motion, affidavits, etc., upon an application to be relieved from the failure to serve and file their answer within the time allowed by law, on the ground of mistake, inadvertence and excusable neglect of defendants' counsel. By consent, the attorney for defendants made a statement in open court of the facts upon which he based said motion for relief and introduced the verified answer as an affidavit of merits. His statement was accepted as true for the purpose of the motion, and, together with said answer, appears in the bill of exceptions in the record.
The evidence on behalf of plaintiff in the cause was then heard and the objection and motion of defendants taken under submission, and thereafter, on the second day of January, *714 1907, the objection was overruled and the motion denied.
Judgment by default in favor of plaintiff for the recovery of the premises was filed January 5, 1907, and the recital in this judgment shows that it was made upon a hearing had on December 31, 1906, at which time evidence was introduced on behalf of plaintiff. The above-mentioned appearance of defendants, the extension of time to plead and their failure to answer within said time are recited in the judgment.
In the consideration of the application for relief from the consequences of the mistake and inadvertence of counsel, all the circumstances surrounding the parties and the litigation as shown by the papers were before the court and were proper matters for it to weigh in reaching a conclusion. (Lakeshore v. Modoc,
The answer denies every material allegation of the complaint, and is a sufficient affidavit of merits. (Montijo v. Sherer,
The application was not made for leave to file the answer. That had already been filed by the clerk when the default was entered. While there are jurisdictions in which it has been held that an answer filed after the time limited by the statute, without leave of the court, may be disregarded as a nullity (6 Ency. of Pl. Pr. 86), the general rule, and that adopted by the supreme court of this state in ordinary civil actions, appears to be, that, where a party pleads before default entered, though out of time or without leave, if the plea be good in form and substance, his default cannot be entered while the plea stands. The proper practice in such case is to move to strike the plea from the files. (6 Ency. of Pl. Pr. 82, 85; Bowers v. Dickerson,
The entry of the default is not a step in acquiring jurisdiction, but an act done after jurisdiction has been acquired by the court. (Sichler v. Look,
Not only is the answer filed after time not a nullity, but the plaintiff is not as a matter of right entitled to have it stricken from the files. The discretion to do this is lodged in the court, which has absolute power either to retain the answer or permit another to be filed, or pursue whatever course in that respect the justice of the case may require. (Bowers v. Dickerson,
There is nothing in the bill of exceptions to show that any motion was made to have the answer stricken from the files, nor does it appear that the court of its own motion did this. Neither is there anything in the record to negative this; that is, to show that no such motion was made or that such action was not taken. The bill of exceptions contains merely the recital that "the following proceedings were had therein." It nowhere appears that the proceedings displayed and the action taken were all the proceedings had or acts done. In the absence of such showing, the presumption must be in favor of the court having done every act necessary to sustain the judgment. In support of the judgment all proceedings necessary to its validity will be presumed to have been regularly taken, and any matters which might have been presented to the court below, which would have authorized the judgment, will be presumed to have been thus presented, if the record shows nothing to the contrary. (Von Schmidt v. Von Schmidt,
This holding renders it unnecessary for us to determine whether any distinction is to be drawn in this respect between the rules of practice in ordinary civil actions and summary proceedings in forcible entry. Presuming, then, in support of the judgment that the answer filed was stricken from the files before the default judgment was rendered, the *717 record shows no reversible error, and the judgment should be affirmed.
Judgment affirmed.
Allen, P. J., and Shaw, J., concurred.