CHAPTER IX.

OF THE PROCEEDINGS ON THE PART OF THE DEFENDANT AFTER HE IS SERVED WITH THE SUMMONS IN AN ACTION.

A defendant must appear and demur or answer to the complaint in the action within the time he is notified to answer by the summons served on him, or his default for not appearing may be entered.

The time to answer, may, after appearance, and for good cause shown, be extended by an order of a judge of the court as prescribed in section 1054 of the Code of Civil Procedure.

That section provides for the cases in which, and the times for which, an extension can be had. The judge, however, cannot extend the time provided by the code in which a thing must be done, for a longer period than thirty days without the consent of the adverse party, unless the party applying for the extension of time is actually engaged in attendance upon a session of the legislature of this state, as a member thereof, in which case it will be the duty of the judge to extend such time until such session of the legislature adjourns and not exceeding thirty days thereafter.1

Should the defendant deem that the summons or the service of the summons in the action is defective, he may move the court on notice, to quash or set aside the summons or the service of the summons.2

If the evidence of the service of a summons be an affidavit, the affidavit of such service must show affirmatively compliance with all the requirements of law; and a judgment by default founded on an affidavit of the service of the summons which

1. Code of Civil Procedure, Sec. 1054.

2. Peck v. Strauss, 33 Cal. 679, 685.

3. McMillan and wife v. Reynolds, 11 Cal. 372.

does not affirmatively show a compliance with all the requirements of law is erroneous, and will be cause for a reversal of the judgment in the action upon an appeal.1

If the judgment recites a due service of process without specifying how the service was made, and without referring to any paper as proof of it, the recital is conclusive on the parties in a collateral attack, unless it should affirmatively appear in some manner from other portions of the record (the judgment roll) that the recital is untrue.5

On an appeal from a judgment, however, the recital in the judgment of the service of the summons on a defendant in the action will not be accepted as a substitute for the proof of the service of a summons when the judgment is directly attacked on such appeal.6

Should the defendant appear for the special purpose of moving to set aside the summons in the action or the service thereof, and if the court denies the motion, a general appearance thereafter and an answer to the complaint in the action do not waive the right of the defendant, or cure the error in denying the motion, if erroneous.7

The appearance of the defendant to make such motion should be a special appearance for that purpose, and not a general appearance in the action; and if the defendant should specially appear to ask for an extension of time to make such motion and to plead, that fact would not make such appearance a general appearance in the action.8

A general appearance of a defendant in an action is equivalent to a personal service of the summons and of a copy of the complaint in the action on such defendant.9

Before answering in the action, the attorney should examine carefully the complaint, and each cause of action, if more than one, therein set forth.

If it appear from the face of the complaint, that the plain

6.

Weeks v. Garibaldi G. M. Co., 73 Cal. 599; McKinley v. Tuttle, 42
Cal. 577.

7. Lyman v. Milton, 44 Cal. 635.

8. Powers v. Baily, 75 Cal. 239.

9. Lyons v. Roach, 84 Cal. 29.

tiff has not the legal capacity to sue, or that there is another action pending between the same parties for the same cause, or that there is a defect or misjoinder of parties plaintiff or defendant, or that several causes of action have been improperly united, the defendant may demur to the complaint for such defects, or any of them, appearing on the face of the complaint.

The defendant may also at the same time demur to the complaint, and to each cause of action therein stated, if it appear on the face of the complaint that the complaint or that the statement therein of any cause of action is ambiguous, unintelligible, or uncertain.

Such demurrer must distinctly specify the grounds upon which any of the objections to the complaint are so taken by demurrer or the demurrer may be disregarded.10

If any of such objections to the complaint do not appear on the face of the complaint, they may be taken by answer ;11 and if no such objections be taken by demurrer or answer, they must be deemed to have been waived.12

The grounds above mentioned for a demurrer to a complaint must appear on the face of the complaint.13

The defendant must specify in his demurrer wherein the complaint is ambiguous, wherein it is unintelligible, and wherein it is uncertain.14

The defendant may also, at the time when he demurs to the complaint on the grounds above stated, and in the same demurrer, demur to the complaint on the ground that it appears on the face of the complaint that the court has no jurisdiction of the person of the defendant, or of the subject of the action; the defendant may also demur to the complaint, or to one or more of the causes of action stated therein, on the ground that it does not state facts sufficient to constitute a cause of action against the defendant. The defendant may demur on any or all of the grounds stated in section 430 of the Code of Civil Procedure.

If the statement of any cause of action contained in a complaint fails to show facts essential to a recovery, an objection to the complaint, or to a cause of action contained therein, for such defect may be made, by a general demurrer.

If, however, the complaint states such essential facts, but states them defectively, the defect can only be reached by a special demurrer. particularly designating the specific point at which it is aimed.15

If the complaint contains several counts and the defendant demurs to the whole complaint, the demurrer should be over-ruled if there be one good count in the complaint.18

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, is not waived by a failure of the defendant to demur to the complaint.1 17

A defendant may demur and answer at the same time, and such answer is not a waiver of the right to have the demurrer passed on by the court. 18

But when a plaintiff who demurs to a cross complaint afterwards and before the demurrer has been ruled on by the court, answers the cross-complaint, such answer is a waiver of the demurrer.19

When a demurrer to a complaint is over-ruled and the defendant then answers, such answer is a waiver of the demurrer, if the demurrer be for mere formal defects; but if the demurrer be for defects in the complaint which are substantial, such as the misjoinder of causes of action, and the defendant answers after the over-ruling of a demurrer, which was on the ground of such misjoinder, such answer is not a waiver of the demurrer.20

When a demurrer to a complaint is sustained, leave to file amendments to the complaint, or to file an amended complaint, within a reasonable time, should be granted by the

15. Harnish v. Bramer, 71 Cal. 156, 158.

16. Cassidy v. Cassidy, 63 Cal. 352.

17. Code of Civil Procedure, Sec. 434.

18. Curtis v. Bachman, 84 Cal. 218.

19. Booth v. Chapman, 59 Cal. 150.

20. Reynolds v. Lincoln, 71 Cal. 190; Thalin v. Stewart, 100 Cal. 374.

court, unless the complaint is so defective that it cannot be made good by any amendment.21

The amendment, or the amended complaint, must be served on the defendants affected thereby, who must answer the amendment or the amended complaint, within ten days after such service, or within such other time as the court may direct, or judgment by default may be entered upon failure to answer, as in other cases.22

23

A demurrer is an answer within the meaning of the provisions of the Code of Civil Procedure which authorizes the entry of the default of a defendant for failure to answer; and the defendant may answer by a demurrer such amendment, or such amended complaint, should he deem the objection thereto by demurrer would be well taken.

Before answering, the defendant should, under the provisions of section 453 of the Code of Civil Procedure, move the court to strike out all the irrelevant and redundant matter in the complaint.

Allegations of conclusions of law are irrelevant under our system of pleading and should be stricken out, unless, in some cases, when such conclusions of law are based on facts alleged in the pleading. Adjectives and adverbs unnecessarily inserted in the complaint should be stricken out.

If this course be pursued, the labor of preparing an answer to a verified complaint will be much decreased, and the answer be made more concise and intelligible than it would be if all of such irrelevant and redundant matters were left in the complaint.

A defendant is entitled to an inspection of the original instrument on which an action is brought and a copy of which is contained in the complaint or is annexed thereto, upon a written demand for such inspection served upon the adverse party or his attorney and filed with the papers in the case; and he is entitled within five days after the service of a written

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