23 Cal. 127 | Cal. | 1863
Lead Opinion
delivered the opinion of the Court—Cope, C. J. and Norton, J. concurring.
It appears that the attorneys of the defendants had prepared a demurrer to file to the amended complaint, but they failed to file it in time, in consequence of a mistake on their part as to the day on which the time for filing would expire—they, by a miscalculation of time, supposing that the time would not expire until the day after it did. In the affidavit on which the motion was founded, and which was sworn to by one of the attorneys of the defendants, he says that after a careful examination the attorneys for the defendants are of the opinion that they have a good legal defense to the complaint, as the same appears upon the face thereof. The facts set forth in excuse of the failure to plead in time are insufficient. (Elliot v. Shaw, 16 Cal. 377.) It was also necessary for the defendants to show that they had a good defense to the action, on the merits, to entitle them to an order setting aside the judgment and default. (Gregory v. Ford, 14 Cal. 141; Gibbons v. Scott, 15 Id. 284; Logan v. Hillegass, 16 Id. 200; Woodward v. Backus, 20 Id. 137.) The statement that their defense depends upon matters appearing upon the face of the amended complaint shows that their defense is of a technical character, not affecting the merits of the action, and it was therefore insufficient, and there was no error in refusing the motion.
The next error assigned is, that the amended complaint does not state facts sufficient to constitute a cause of action, in this, that there is no detailed specific description of the improvements on real estate and personal property assessed to the defendants. The real estate is described fully, and then follow these words: “ and also the improvements theréonand in another portion of the complaint it is averred that there was duly assessed to the defendant,
This action is brought under the General Revenue Act of May 17th, 1861 (Stat. 1861, 419), and we had occasion to give a construction to this act on the question of the sufficiency of a description of personal property like the present in the case of The People v. Sastman, decided at the present term, in which it was held to be sufficient. The same reasons by which such a description of personal property was upheld will apply equally to “ improvements on real estate.” The Assessor is only required to assess such improvements in general terms under a gross valuation, and the statute does not seem to contemplate a more specific description in the complaint.
The judgment is therefore affirmed.
Rehearing
delivered the following opinion—Norton, J. concurring:
The appellant insists, in his petition for a rehearing, that the plaintiff had no right to enter a default, because the Court did not fix any time within which to answer the amended complaint, in accordance with the provisions of Sec. 43 of the Practice Act. It is the universal practice in this State to answer amended complaints within the same time after Service of a copy as in case of a service of a summons with a copy of the original complaint, and it is seldom that the Court fixes any specific time by an order for answering in such cases. The defendants in this case evidently were governed by this practice, and so construed the law, as they intended to file their answer within ten days after the service of the amended complaint, but failed to do so by a mistake as to the date of the expiration of the ten days. We think that a reasonable construction of
The rehearing is denied.