Oliphant v. Whitney

Citations

• 34 Cal. 25

Syllabus

<p>Entering Default.—If a demurrer is filed within the time specified in the summens to answer, the Clerk cannot enter the default of the defendant and final judgment for want of answer, even if the demurrer has not been served upon the opposite attorney.</p> <p>Jurisdiction of Clerk.—The Clerk has no authority to hear evidence, ex parte or otherwise, and try the question whether a demurrer or answer has been served upon the opposite attorney, nor can the Court by a rule confer that authority upon him. Such question can tried by the Court alone.</p> <p>Section One Hundred and Fifty of Practice Act.—A demurrer is an answer within the meaning of section One hundred and fifty of the Practice Act.</p> <p>Service of Demurrer or Answer.—It is not necessary, under the statute, to serve an answer or demurrer upon the opposite attorney, unless he lives in the same county in which the action is pending.</p> <p>Opening Default.—If a demurrer is filed with the Clerk within the statutory time, and the Clerk in vacation enters a default and judgment upon ex parte proofs made by the plaintiff that no copy of the demurrer has been served upon the opposite attorney, the default should be opened on defendant's application.</p>