Callahan v. Hickey , 1883 Cal. LEXIS 486 ( 1883 )

Per Curiam.

In the absence of defendant’s counsel the court overruled a demurrer which had been interposed by the defendant to the plaintiff’s complaint, without giving time to the defendant to answer. But there was a rule of the court which provided as follows: “Rule 16. When a demurrer to any pleading is sustained or overruled the adverse party shall have five days within which to amend or answer after receiving notice of the ruling of the court. When a demurrer to the complaint has been overruled for want of an appearance of the party demurring, or where, in the opinion of the court, the demurrer was frivolous or interposed for delay, leave will not be given to the party to answer such complaint, except upon condition that such party files and serves a verified answer, or an affidavit of merits, within five days, or such further time as may be allowed by the court or judge thereof.”

Instead of giving the notice required by the rule, the plaintiff, immediately after the overruling of the demurrer, took judgment against the defendant, and had the same entered against him. The taking and entry of the judgment were in violation of the rule of the court, and the judgment was irregular, and being irregular, upon the showing made by the defendant, the court properly set it aside and allowed the defendant to answer the complaint.

Order affirmed.