Aсtion for the recovery of real property in the county of San Bernardino.
A trial by jury of the issues in the abоve-entitled action was waived by the parties, and when the cause came on for trial the plaintiff’s counsel read the verified complaint and answer and called' a witness to the stand, who was duly sworn by the clerk, whereupon the court made the following order t “This cause having been called for trial and the pleadings read, and under the rule of court the parties were requested to deposit with the clerk each one half of the reporter’s per diem to abide the result of this suit, and the reporter refusing to report the testimony unless the fees are paid, and the defendant refusing to comply with the order of the court, аnd the court deeming that this is a case where it is necessary to have a reporter, as it involves the examination of several witnesses orally: It is therefore ordered that the defendant, deposit the feе of the reporter within five minutes, or a judgment will go for plaintiff as prayed for.” The defendant’s, counsel therеupon stated to the court that the defendant had no money with which to comply with the direction, and that hе excepted to the order. Prior to this time the superior-court of that county had adopted a rule, which was then in force, fixing the compensation of its official reporter at seven dollars per day, and declaring that “The per diem herein fixed shall, upon the opening of court and before the taking оf notes by the reporter, be deposited, one half thereof by the respective parties, with the clerk of the court for the use and benefit of said reporter, said amount to be thereafter taxed as costs by the party in whose favor judgment is rendered.” Upon the expiration of the time named in the order, аnd the defendant having failed to deposit the reporter’s fee as required by the order, the court, without any trial of the cause, ordered judgment to be entered in favor of the plaintiff, and thereupon judgment was еntered in his favor for the recovery from the defendant of the possession of the property desсribed in the complaint. From the judgment thus entered the defendant has appealed.
The judgment thus entered by the court cannot be sustained. It was not within the power of the court to render a judgment giving to the plaintiff the right tо property of which the defendant was in possession, without any evidence-
*608
of such right, or affording to the defendant an opportunity to reply to whatever evidence the plaintiff might adduce. The failure or rеfusal of a defendant to pay the costs of an action, or any portion thereof, in advance of a trial, does not authorize the court to deprive him of his defense to the action. The guarantеe of the constitution that he shall not be deprived of his property without due process of law gives him the right to be heard in its defense against any claim that may be made against him for its possession; and he is not to bе deprived of this right as a penalty for failing to comply with some rule of court. (See
Foley
v.
Foley,
The court also erred in overruling the defendant’s demurrer to the complaint. The complaint allegеs that at the time of *609 the commencement of the action the plaintiff was the owner of and in possession of the еntire tract of land therein described; and it also alleged that for about one year prior theretо the defendant “had been and now is” unlawfully in the possession, without any right or title, of a portion of the above-described premises, and unlawfully withholds the same from the plaintiff—describing the portion so withheld. The defendant demurred to the complaint for ambiguity, pointing out in its demurrer these averments as the particulars in which it was ambiguous, and its demurrer should have been sustained.
The judgment should be reversed.
Gray, C., and Cooper, C., concurred.
For the reasons given in the foregoing opinion the judgment appealed from is reversed.
Van Dyke, J., Shaw, J., Angellotti, J.
Notes