People v. Rains

Crocker, J. delivered the opinion of the Court—Cope, C. J. and Norton, J. concurring. [129] This is an action to recover delinquent taxes. The defendants appeared and demurred to the original complaint; their demurrer was sustained, and leave granted to the plaintiff to amend the complaint. An amended complaint was duly filed and served; but the defendants failing to plead thereto within ten days, a default was duly entered, with a final judgment for the amount claimed in the complaint. The defendants came in and moved the Court to set aside the default and judgment, which motion was denied, and they then appealed therefrom to this Court. It appears that the attorneys of the defendants had prepared a demurrer to file to the amended complaint, but they failed to file it in time, in consequence of a mistake on their part as to the day on which the time for filing would expire—they, by a miscalculation of time, supposing that the time would not expire until the day after it did. In the affidavit on which the motion was founded, and which was sworn to by one of the attorneys of the defendants, he says that after a careful examination the attorneys for the defendants are of the opinion that they have a good legal defense to the complaint, as the same appears upon the face thereof. The facts set forth in excuse of the failure to plead in time are insufficient. (Elliot v. Shaw, 16 Cal. 377.) It was also necessary for the defendants to show that they had a good defense to the action, on the merits, to entitle them to an order setting aside the judgment and default. (Gregory v. Ford, 14 Cal. 141; Gibbons v. Scott, 15 Id. 284; Logan v. Hillegass, 16 Id. 200; Woodward v. Backus, 20 Id. 137.) The statement that their defense depends upon matters appearing upon the face of the amended complaint shows that their defense is of a technical character, not affecting the merits of the action, and it was therefore insufficient, and there was no error in refusing the motion. The next error assigned is, that the amended complaint does not state facts sufficient to constitute a cause of action, in this, that there is no detailed specific description of the improvements on real estate and personal property assessed to the defendants. The real estate is described fully, and then follow these words: “ and also the improvements theréonand in another portion of the complaint it is averred that there was duly assessed to the defendant, [130] “ the above-described real estate, improvements on real estate, and certain personal property.” Even if there was a lack of certainty and particularity in the description of the improvements and personal property, there is still a substantial averment of the facts, though defective in form and certainty, and in such case the defect is cured by a verdict or default. (Garner v. Marshall, 9 Cal. 268; Hentsch v. Porter, 10 Id. 559.) The forty-fifth section of the Practice Act provides that objections on the ground of uncertainty and the like must be taken by demurrer or answer, or they will be deemed waived. This action is brought under the General Revenue Act of May 17th, 1861 (Stat. 1861, 419), and we had occasion to give a construction to this act on the question of the sufficiency of a description of personal property like the present in the case of The People v. Sastman, decided at the present term, in which it was held to be sufficient. The same reasons by which such a description of personal property was upheld will apply equally to “ improvements on real estate.” The Assessor is only required to assess such improvements in general terms under a gross valuation, and the statute does not seem to contemplate a more specific description in the complaint. The judgment is therefore affirmed.