Lunnun v. Morris

95 P. 907, 7 Cal. App. 710, 1908 Cal. App. LEXIS 297

• Court: California Court of Appeal
• Decided: March 17, 1908
• Docket: Civ. No. 389.
• Status: Published

Opinions

An action in forcible entry. The statement of facts in this case will be found in the decision rendered by this court September 24, 1907, post p. 713. We are satisfied with the views expressed in that opinion, except what is said as to the intendment declared to exist in support of the judgment.

The bill of exceptions contained in the record was treated as if entitled to be considered only in connection with the motion of appellant for relief under section 473 of the Code of Civil Procedure on the ground of mistake. In this we overlooked the fact that it was a part of the judgment-roll, and the presumption which, under such circumstances, attached to it, to wit, that it contained all the evidence material to the rulings to which exceptions were reserved and specified therein. This presumption rendered it unnecessary that it should negative the introduction of other evidence bearing upon the point to be considered. (Hidden v. Jordan, 28 Cal. 301; Bedan v. Turney,99 Cal. 652, [34 P. 442].) The bill of exceptions when settled became a part of the judgment-roll (Code Civ. Proc., sec. 950), and the court's record of its own acts, and an appellate court could no more assume that error appearing therein was cured by some matter which is not contained in the bill than it could consider matters outside of the roll for the purpose of impeaching the correctness of the judgment. The oversight mentioned resulted in an erroneous conclusion and the entry of an improper order by this court.

Respondent, upon the rehearing, again urges that a distinction should be drawn between an action of forcible entry and an ordinary civil action in considering the question presented by the appeal. The question is one of practice, and, unless otherwise provided in the chapter relating to forcible entry and unlawful detainer, must be determined by the general rules of practice in civil actions. (Code Civ. Proc., sec. 1177.) The particular question here involved is not covered by a statutory rule relating to either class of cases. An answer was filed after the expiration of the time provided by law. It was not stricken out before default was entered. The power to enter judgment does not depend in either case upon the entry of the default. Jurisdiction to enter the judgment is acquired by service of process in both cases, and the defendant in either may, at the discretion of the court, be relieved from a default and permitted to answer after the expiration of the time given by statute for that purpose. A reason from which a distinction might be drawn on account of the summary character of the action is apparent, but the statute provides that the general rule shall be followed in all instances for which express provisions are not made in the chapter relating to the special proceeding. In the absence of the special provision, we must be governed by the general rule declared in an ordinary civil action, which is that the default should not be entered until the answer shall have first been stricken from the files. (Bowers v. Dickerson, 18 Cal. 420; Acock v. Halsey, 90 Cal. 216, [27 P. 193]; 6 Ency. of Pl. Pr. 82, 85.) A note under the last citation distinguishes the rule in the state of New York (from which cases are cited by appellant), as not being in accord with this, but the New York rule is stated as the exception. No decision in this state has been called to our attention which modifies the effect of Bowers v. Dickerson,18 Cal. 420, as an authority on this question.

Judgment reversed and cause remanded.

Allen, P. J., and Shaw, J., concurred.

The following is the opinion rendered upon the former hearing, September 24, 1907, which was approved in the foregoing opinion with the exception therein stated: