31 Cal. 101 | Cal. | 1866
This action was instituted by the District Attorney of Placer County, in the name of the people of the State of California, to recover certain taxes alleged to have been levied and ' assessed upon the real estate and improvements, described in the complaint as the property of the defendant McClellan. The complaint shows that during all the month of March, 1864, the real estate and improvements were in the County of Placer, and on the 15th of that month the duly constituted Assessor made an assessment of said property and entered the same upon the assessment roll as the property of the defendant ; and the complaint contains other averments corresponding with the formula contained in the statute; and it also contains an allegation that on the 1st of April, 1864, an Act was passed by the Legislature of the State, entitled “An Act to define the boundaries of Sutter County,” by which the real estate described became a part of Sutter County.
To the complaint the defendant demurred and answered at the same time. The demurrer was afterward overruled, and thereupon the Court, on motion of the plaintiff’s counsel, made an order that the answer be stricken out, unless the defendant should pay to the plaintiff in twenty days from that day the sum of twenty dollars costs, provided by a rule of the Court to be paid in such cases. The twenty days having elapsed and the defendant having failed to pay the twenty dollars costs, the Court made the order to strike out the answer absolute, and thereupon gave judgment for the plaintiff in accordance with the prayer of the complaint. The defendant upon his appeal from this judgment assigns the overruling of the demurrer, the striking out of defendant’s answer, and the giving judgment for the plaintiff against the defendant, as grounds of error.
The forty-second section of the Practice Act reads as fol- lows: “ The defendant may demur to the w hole complaint, or to one or more of several causes of action stated therein, . and answer the residue; or. may demur and answer at the
We are of the opinion the demurrer was properly overruled, and if the answer had failed to set forth matters which, if assumed to be true, constituted a defense to the action, there would be no ground for reversing the judgment; but the answer puts at issue several material allegations of the complaint, which, if found for the defendant upon the trial to which he is of right entitled, must result in a judgment in his favor.
The order striking out the answer, and the judgment thereafter entered should be, and is hereby reversed, and the cause remanded for trial.