cretion, require the complaint, as amended, to be filed, and a copy of the amendments, or amended complaint, must be served upon the defendants affected thereby. The defendant must answer the amendments or the complaint, as amended, within ten days after service thereof, or such other time as the court may direct, and judgment by default may be entered upon failure to answer, as in other cases. En. March 11, 1872. Am'd. 1880, 2. Cal.Rep.Cit. 58, 45; 58, 94; 60, 295; 60, 405; 72, 88; 90, 61; 99, 205; Prac. Act, sec. 43. 1855, 196. 99, 206; 137, 676. En. April 29, 1851. Am'd. 1854, 60; Cal.Rep.Cit. 1, 174; 1, 395. Amendment-generally: Post, secs. 472, 473. § 433. Objection not appearing on complaint, may be taken by answer. When any of the matters enumerated in section 430 do not appear upon the face of the complaint, the objection may be taken by answer. En. March 11, 1872. Cal.Rep.Cit. 60, 405; 66, 517; 87, 460; 92, 88; 95, 133; 110, 460; 121, 571; 130, 520. Prac. Act, sec. 44. Cal.Rep.Cit. 1, 175; En. April 29, 1851. 1, 395; 4, 313; 8, 590; 25, 89; 25, 91; 31, 420; 6, 165; 7, 334; 36, 126; 47, 221. § 434. Objections, when deemed waived. If no objection be taken, either by demurrer or answer, the defendant must be deemed to have waived the same, excepting only the objection to the jurisdiction of the court, and the objection that the complaint does not state facts sufficient to constitute a cause of action. En. March 11, 1872. Cal. Rep.Cit. 59, 516; 66. 59; 69, 157; 70, 784 70, 405; 74, 153; 77, 392; 78, 256; 82, 525; 92, 88; 95, 133; 95, 579; 96, 611; 101, 641; 103, 445; 110, 289; 110, 337; 110, 460; 110, 487; 121, 571; 124, 130; 134, 412; 136, 614; 137, 306. Prac. Act, sec. 45. En. April 29, 1851. 437. 438. 439. 440. 441. § 442. § 437. CHAPTER IV. THE ANSWER. Answer, what to contain. When counterclaim may be set up. When defendant omits to set up counterclaim. Defendant may answer part and demur to part of com- Answer, what to contain. The answer of the defendant shall contain: 1. A general or specific denial of the material allegations of the complaint controverted by the defendant. 2. A statement of any new matter constituting a defense or counterclaim. If the complaint be verified, the denial of each allegation controverted must be specific, and be made positively, or according to the information and belief of the defendant. If the defendant has no information or belief upon the subject sufficient to enable him to answer an allegation of the complaint, he may so state in his answer, and place his denial on that ground. If the complaint be not verified, a general denial is sufficient, but only puts in issue the material allegations of the complaint. En. March 11, 1872. Am'd. 1873-4, 300. Cal. Rep. Cit. 65, 324; 65, 385; 92, 180; 94, 174; 98, 646; 100, 488; 119, 433; 119, 472; 129, 50. Subd. 289, 445; 99, 87; 100, 486; 118, 690; 119, 471; 121, 271; 126, 293; 128, 328; 132, 11; 133, 71; 138, 722. Prac. Act, sec. 46. En. April 29, 1851. Am'd. 1854, 60; 1860, 298; 1862, 562; 1866, 702. Cal.Rep.Cit. 6, 200; 8, 149; 18, 314; 19, 658; 21, 435; 8, 369; 25, 89; 9, 38; 9, 62; 35, 280; 38, 585; 26, 306; 27, 371; Pleas in abatement: See ante, sec. 430. Amendment: Ante, secs. 472, 473. Appearance, answering is: Post, sec. 1014. Counterclaim: Post, secs. 438-441. Cross-complaint: Post, sec. 442. Death of party: Ante, sec. 385. Disability of party: Ante, sec. 385. Errors and defects to be disregarded: Post, sec. 475. Gold coin, etc., allegations as to money being payable in, should be denied: Post, sec. 667. Striking out: Post, sec. 453. Supplemental answer: Post, sec. 464. Time to answer-extension of: Post, sec. 1054. Writing-Setting forth in answer, effect of: 448, 449. Post, secs. Particular actions, answers in: See Particular Title. § 438. When counterclaim may be set up. The counterclaim mentioned in the last section must be one existing in favor of a defendant and against a plaintiff between whom a several judgment might be had in the action, and arising out of one of the following causes of action: 1. A cause of action arising out of the transaction set forth in the complaint as the foundation of the plaintiff's claim, or connected with the subject of the action; 2. In an action arising upon contract; any other cause of action arising also upon contract, and existing at the commencement of the action. En. March 11, 1872. Cal.Rep.Cit. 51, 640; 57, 647; 65, 324; 65, 326; 69, 618; 96, 91; 101, 290; 113, 440; 116, 96; 132, 161. Subd. 1110, 263; 120, 413; Subd. 251, 226; 118, 337; 119, 471; 70, 112; 72, 226; 104, 135; 107, 67; 110, 264; 110, 266; 119, 472; 119, 474; 126, 293; 126, 295; 53, 32; 67, 590; 70, 113; 100, 34; 125, 49; 129, 479; 135, 40; 137, 338. 58, 354; 64, 274; 64, 491; 101, 649; 120, 28; 120, 413; 125, 49; 126, 293. Prac. Act, sec. 47. En. April 29, 1851. Cal.Rep.Cit. 8, 405; 19, 658; 30, 252; 39, 178; 39, 392; 50, 654. Dismissing action where counterclaim: Post, sec. 581. Omission to set up counterclaim prevents future action thereon: Post, sec. 439. Am'd. 1860, 299. 35, 280; 39, 177; Compensated, cross-demands deemed: Post, sec. 440. $439. When defendant omits to set up counterclaim. If the defendant omit to set up a counterclaim in the cases mentioned in the first subdivision of the last section, neither he nor his assignee can afterward maintain an action against the plaintiff therefor. En. March 11, 1872. Cal.Rep.Cit. 58, 611; 129, 479; 135, 41. Subd. 3.-130, 520. § 440. Counterclaim not barred by death or assignment. When cross-demands have existed between persons under such circumstances that, if one had brought an action against the other, a counterclaim could have been set up, the two demands shall be deemed compensated, so far as they equal each other, and neither can be deprived of the benefit thereof by the assignment or death of the other. En. March 11, 1872. Am'd. 1873-4, 300. Cal.Rep Cit. 43, 146; 65, 324; 107, 62; 107, 67; 110, 266; 118, 741; 119, 474; 126, 293; 126, 295; 136, 628. Prac. Act, sec. 48. En. April 29, 1851. § 441. Answer may contain several grounds of defense. Defendant may answer part and demur to part of complaint. The defendant may set forth by answer as many defenses and counterclaims as he may have. They must be separately stated, and the several defenses must refer to the causes of action which they are intended to answer, in a manner by which they may be intelligibly distinguished. The defendant may also answer one or more of the several causes of action stated in the complaint, and demur to the residue. En. March 11, 1872. Cal.Rep.Cit. 92, 180; 115, 316; 121, 171; 121, 417; 129, 651. § 442. Cross-complaint. Whenever the defendant seeks affirmative relief against any party, relating to or depending upon the contract or transaction upon which the action is brought, or affecting the property to which the action relates, he may, in addition to his answer, file at the same time, or by permission of the court subsequently, a crosscomplaint. The cross-complaint must be served upon the parties affected thereby, and such parties may demur or answer thereto as to the original complaint. En. Stats. 1873-4, 301. 57, 647; 71, 149; 58, 239; 64, 514; 81, 188; 87, 153; 87, 264; Cal.Rep. Cit. 57, 589; 57, 593; 68, 280; 69, 618; 69, 619; 82, 416; 83, 599; 84, 587; 91, 554; 109, 110; 110, 152; 112, 651; 120, 57; 120, 58; 122, 249; 125, 660; 126, 60; 126, 318; 126, 594; 127, 615; 127, 617; 127, 621; 130, 44; 135, 44; 136, 315; 136, 509; 136, 535; 138, 317. Original complaint: Secs. 426, 427. Dismissing action, where cross-complaint: Post, sec. 581. CHAPTER V. DEMURRER TO ANSWER. 443. 444. When plaintiff may demur to answer. § 443. When plaintiff may demur to answer. The plaintiff may, within the same length of time after service of the answer as the defendant is allowed to answer after service of summons, demur to the answer of the defendant, or to one or more of the several defenses or counterclaims set up in the answer. En. March 11, 1872. Am'd. 1873-4, 301. Cal.Rep.Cit. 109, 443; 110, 152; 119, 529. Prac. Act, sec. 50. En. April 29, 1851. 1860, 299; 1862, 562; 1866, 702. Demurrer to complaint: Ante, sec. 430. Am'd. 1854, 60; 34, 161; 38, 585; Time to demur, extending: Post, sec. 1054. Time to answer when demurrer overruled begins to run from service of notice of decision: Post, sec. 476. § 444. Grounds of demurrer. The demurrer may be taken upon one or more of the following grounds: 1. That several causes of counterclaim have been improperly joined; 2. That the answer does not state facts sufficient to constitute a defense or counterclaim; 3. That the answer is ambiguous, unintelligible, or uncertain. En. March 11, 1872. Cal.Rep.Cit. 68, 349; 87, 405; 119, 529. Grounds of demurrer: Ante, sec. 430. |
