Opinion
April 7, 1911.
William W. Niles, for the appellant.
Edwin R. Leavitt, for the respondent.
Defendant's motion for judgment on the pleadings was properly denied, because it was premature. An amended complaint had been served, but it had not been answered or demurred to. Consequently the cause was not at issue, and there were, properly speaking, no pleadings upon which an order for judgment could be based. Section 547 of the Code of Civil Procedure clearly contemplates that a motion under it shall be made only when the cause is at issue, and it would have been a simple matter for defendant to have served an answer or demurred and then have made his motion. The order appealed from must be affirmed, with ten dollars costs and disbursements.
INGRAHAM, P.J., McLAUGHLIN, MILLER and DOWLING, JJ., concurred.
Order affirmed, with ten dollars costs and disbursements.