Oliphant v. Whitney
California Supreme Court
Appeal from the District Court, Eleventh Judicial District, Calaveras County. The defendant, on his application to open the default, introduced affidavits stating that he had a meritorious defence to a part of the cause of action in the opinion of his counsel, and that he employed counsel to defend, and that his counsel did not know of the rule of Court requiring a demurrer to be served on the plaintiff’s attorney. The other facts are stated in the opinion of the Court.
1Opinion of the Court
By the Court, Sawyer, J.:
Due service of summons having bisen made on defendant in another County and district, a demurrer was filed within the forty days allowed him to answer. After the forty days had expired, in vacation, the plaintiff’s attorney filed his own, and his client’s affidavit, showing that no copy of the demurrer had been served, either on the plaintiff or his attorney, and, thereupon, in pursuance of a rule of the Court, the Clerk, upon plaintiff’s ex parte application, entered defendant’s default and final judgment for want of an answer. Defendant subsequently, under section…
2Cited by17 opinions
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- Ealy v. McGahenNew Mexico Supreme Court · 1933
- Central Deep Creek Orchard Co. v. C. C. Taft Co.Idaho Supreme Court · 1921
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