King v. Gardner ( 1898 )

Chiee Justice Campbell

delivered the opinion of the court.

To reverse a judgment against them, the plaintiffs in error,, defendants below, assign and argue two alleged errors of the trial court:

First, that no notice that the second amended complaint was, or would he, filed was given them.

Second, that no notice was given them of the application of the plaintiffs, the defendants in error here, for an order requiring them to plead to said complaint.

The record discloses that to the first amended complaint the defendants demurred. Before any trial of the issue of law thereby raised, the plaintiffs confessed the demurrer, and filed a second amended complaint; and within ten days served a copy thereof upon the attorney for the defendants. Thereafter, on plaintiffs’ application, an order, whether with or without notice to defendants does not appear, was entered, requiring them to plead within ten days to the second amended complaint. The defendants did not plead thereto, either within ten days after service of the copy as aforesaid, or within the ten days fixed in the order. For this failure their default was entered, and judgment rendered against them. Section 73 of the civil code, which covers this case, is as follows :

“Sec. 73. After the demurrer, and before the trial of the issue of law therein, the pleadings demurred to may be amended as of course, and without costs, by filing the same as amended and serving a copy thereof on the adverse party or his attorney, within ten days, who shall have ten days thereafter in which to demur or answer thereto, if in vacation; but if during the term of court, the court shall fix the time by order to expedite the trial, but the party shall not so amend more than once. A demurrer shall be deemed waived by the filing of an answer or reply to the same cause of action or defense.”

Under this section the plaintiffs clearly had the right, if in vacation, to file an amended pleading as of course, by duly serving a copy on the adverse party or his attorney, and the defendants must plead thereto without an entry of an order by the court so directing. McDonald v. Hallicy, 1 Colo. App. 303.

In the opinion in that case it was said that a notice was also necessary. There may be some indefiniteness as to what was intended thereby, but we think the learned writer of the opinion had in mind notice of the motion for an order shortening the time for pleading, as the court was then in session; or it may he that the notice referred to was the notice of motion setting the case for trial; and in either event, the decision of the learned court was right1 upon the record before it. In favor of the regularity of the proceedings below, we have a right to presume that the filing of the amended complaint was in vacation, as the contrary is not made to appear. We are of opinion, therefore, that the plaintiff was not obliged to give any notice to defendants that a second amended complaint was, or would be, filed. His right to file the same was conditioned only upon serving a copy of the amended pleading on his adversary, which he did within the time fixed by the statute. The fact that subsequently the court made an order extending the time for defendants to plead thereto is entirely immaterial, though under the doctrine of Evans v. Young, 10 Colo. 316 (see also 6 Enc. Pl & Pr. p. 55), we* might indulge the presumption in favor of the regularity of' the proceedings below, that the required notice was given. But we are not obliged to rely on a presumption merely. For another reason the defendants may not be heard to complain. The statute itself prescribes the time within which the defendants were required to plead, and no order of court was necessary therefor. It clearly appearing that they did not plead within the statutory time, their failure in that respect worked a default. The order of the court requiring them to plead within ten days may therefore be altogether disregarded, and the entering of default and the subsequent rendition of judgment vindicated solely upon the ground that defendants failed to plead in accordance with the provisions of the statute.

It satisfactorily appearing to us that no prejudicial error appears in the record, the judgment should be affirmed; and it is so ordered.

Affirmed.