and the defect therein is cured by the answer. 301 So the omission of a material fact in a complaint is cured by its averment in a cross-complaint of the defendant, and the admission of the averment in the answer to the cross-complaint. And the fact that there is a demurrer to the complaint does not take the case out of the rule of express aider.302 But admissions made in the statement of a separate affirmative defense are not to be taken as facts upon a controverted question otherwise at issue in the pleadings by appropriate allegation and denial.203

301 Shively v. Water Co., 99 Cal. 259; Burns v. Cushing, 96 id. 669; Schenck v. Sworts, 71 id. 28; Moffat v. Greenwalt, 90 id. 368; Robinson, etc., Co. v. Johnson, 13 Col. 258; Limberg v. Higenbotham, 11 id. 156; Drake v. Sworts, 24 Oreg. 198; Hamilton v. Railw. Co., 17 Mont. 334.

302 Cohen v. Knox, 90 Cal. 266; compare Robinson, etc., Co. v. Johnson, 13 Col. 258.

303 Hayes v. Williams, 17 Col. 465.

PART FIFTH.

DEFENSES TO THE ACTION.

CHAPTER I.

ANSWERS IN GENERAL.

3166. General nature of. If the defendant does not demur, or, having demurred, the plaintiff having filed and served an objectionable complaint, his only alternative method of defense is to answer the complaint by matter of fact. In the ordinary sense, an answer means a reply. In pleading it may be a reply which either admits or denies the facts alleged in the complaint, or it may admit, and then avoid the effect of the admission by making a counter-statement. In either case the object of an answer is to make an issue. Without an issue no trial can be had, because there is no question of difference between the plaintiff and defendant-in other words, plaintiff asks for nothing which defendant refuses to grant him. Burrill, in his Law Dictionary, defines an answer to be any pleading except a demurrer, framed to meet a previous pleading.1

Under the California practice, where the complaint is sworn

1 The object of an answer is to plainly notify the court and the opposite party of the facts relied upon as a defense, so that the plaintiff may be prepared to meet them if he can. The testimony must then be confined to the allegations. Knuhtla v. Oregon, etc., R. R. Co., 21 Oreg. 142; Troy Laundry Co. v. Henry, 23 id. 232. A defense not pleaded can not be considered, although shown by the evidence. Wilson v. White, 84 Cal. 239. And where a party to a suit has an opportunity to present his defense and neglects to do so, the decree against him is binding in a collateral proceeding. Morrill v. Morrill, 20 Oreg. 96. So, a defense should be so pleaded, that, being admitted as pleaded, judgment must go for the defendant, and this rule is especially rigid in pleading fraud or a forfeiture. Greiss v. State Investment, etc., Co., 98 Cal. 241. Each defense must be complete in itself. Weston v. Estey, 22 Col.

to, the defendant must deny specifically each allegation in the complaint. But by each allegation is meant each material allegation; for if plaintiff makes averments in his complaint not necessary or material to present his cause of action, or if he avers conclusions of law, or sets out evidence, these need not be traversed, for they are not issuable facts, or, if issuable, they are not pertinent to the case. Because plaintiff makes a history of his complaint, there is no reason, necessity, or excuse for the defendant to deny the truth of that history. Nor is it proper to seek out the very words of the complaint, and then negative each and every one of them. An issue is not as well or as clearly made by negativing the language of the complaint in terms as by denying the facts expressed by such language. If plaintiff has been wronged, some one has injured him, and defendant, to make an issue, only needs to deny the ultimate facts. In general, the reasons which caused the injury need not be pleaded. The commission of the injury, the time and place, extent of the injury, and the person who did it, in most cases should be traversed.

For example, in a case of forcible entry, defendant [the person] denies that on the ....... day of ... 18..,

or at any other time [the time], he broke or entered into the premises described [the wrong], or damaged plaintiff in any amount [extent of injury]. If, for instance, and which is frequently the case, the plaintiff alleges that at the time stated defendant wrongfully and unlawfully broke, etc., defendant need only deny the breaking; the court will be competent to say whether it was wrongful or unlawful after the proofs are heard. That is what the court is for. The pleader, whether representing plaintiff or defendant, should only allege or deny the facts; the effect of the existence of certain facts is left for the disposition of the tribunal to which the parties appeal for justice.

Defendant's counsel, when about to make answer to a complaint, inquires: 1. Has any wrong been alleged in the complaint? 2. Does the complaint charge the defendant with the commission of the wrong? 3. Is defendant liable to the extent alleged in the complaint? 4. Has defendant a counterclaim? 5. Was the injury done within the Statute of Limitations? 6. Did the defendant do the wrong? And these injuries will suggest to the pleader what answer will raise an issue.

2 Cal. Code Civ. Pro., § 437.

§ 3167. Objections not appearing on face of complaint. When any of the matters enumerated in the Codes as ground for demurrer3 do not appear upon the face of the complaint, the objection may be taken by answer; and the demurrer to the complaint having been disposed of, the defendant may make his answer, filing the original with the clerk of the court in which the action is brought, and serving a copy upon the adverse party or his attorney.* The time within which the defendant must answer is regulated by the Codes, and differs in the several states.5 But the time to answer may be extended by the court or judge.

8

3168. Time to answer. The time to answer in the several states is fixed by the statutes of such states, and the practice of the courts in many of them differs from the practice in California. In New York, defendant must answer within the statutory time or such further time as he may obtain by order.7 In California, an answer filed without leave of court, after the time for answering has expired, but before default has been entered, is not a nullity, but at most an irregularity. The court in its discretion may strike it out or retain it, or permit another to be filed; but plaintiff can not, as of right, have such answer stricken out. For these purposes defendant is not in default until his default has been actually entered in accordance with the statute. If the defendant demurs only, and the demurrer is overruled, the court may allow him to answer, imposing terms in its discretion.10 In reference to the time in which the answer must be filed, courts will take judicial notice of the territorial extent of the jurisdiction and sovereignty exercised de facto by their own government, and of the local divisions of the country into states, counties, cities, towns, etc.11 When a demurrer is interposed and overruled, the question of time to answer and terms are chiefly regulated by the rules and

3 Cal. Code Civ. Pro., § 430; New York Code, § 448.

4 Cal. Code Civ. Pro., § 465; Oliphant v. Whitney, 34 Cal. 25.

5 See Cal. Code Civ. Pro., § 407, subd. 3.

6 Id., §§ 473, 1054, as amended by act of January 31, 1895.

7 See New York Code Civ. Pro., §§ 520, 781, 782.

8 Cal. Code Civ. Pro., § 437; Bowers v. Dickerson, 18 Cal. 420.

9 Id.

10 See Cal. Code Civ. Pro., §§ 432, 472, 473; Maumus v. Hamblon, 38 Cal. 539.

11 People v. Smith, 1 Cal. 9.

discretion of the court in which the cause is pending.12 For if the demurrer is deemed frivolous, terms will be imposed before answer is allowed. Such a rule is required to prevent demurrer from becoming a means of delay only, and if the court does not fix the time within which answer in such case must be filed, the defendant should answer within the same time as in case of service of copy of the original complaint.13 When the defendant, on motion being decided in his favor, is allowed time to answer until the plaintiff elects on which count of the complaint he will go to trial, the plaintiff should serve a copy of the complaint with the notice of his election.14 And if an answer has been already filed, it may be allowed by order of the court to stand as the answer to such amended complaint, and it shall be treated as if filed when the order is made. 15 If the defendant should fail to answer in the time specified in the summons, it is not an unsound exercise of discretion in the court to refuse him leave to file an answer which does not show a meritorious defense.16 Under the California practice, the defendant may file an appearance, and answer immediately after suit brought, and without service, if he so desires, thus joining issue at once.

§ 3169. Defense, how pleaded. A defendant should set forth the true nature of his defense in his answer," 17 as the proofs

12 Thornton v. Borland, 12 Cal. 438; Cal. Code Civ. Pro., §§ 472, 473, 1054; People v. Rains, 23 Cal. 128.

18 People v. Rains, 23 Cal. 128.

14 Wilson v. Cleveland, 30 Cal. 192.

15 Mulford v. Estudilo, 32 Cal. 131.

16 Hallowell v. Page, 24 Mo. 590; Page v. Page, id. 595. A stipulation extending the time within which to answer to and including a specified day which falls on Sunday entitles the defendant to answer at any time during the succeeding Monday. Blackwood v. Cutting Packing Co., 71 Cal. 461. So, the fact that an answer is not filed until after the expiration of the time for answering does not render the filing a nullity, and where the answer seeks affirmative relief, a judgment of dismissal of the action by the plaintiff is void, Acock v. Halsey, 90 Cal. 215. In Oregon when an answer is not filed within the time limited, the proper practice is to apply to the trial court for a default or judgment for want of an answer. Gaines v. Cyrus, 23 Oreg. 403. The Washington statute (Laws of 1893, p. 407), fixes the time for answer in response to summons as twenty days in all cases. McMaster v. Thrasher Co., 10 Wash. St.

17 Walton v. Minturn, 1 Cal. 362.