Opinion
Civ. No. 792.
October 6, 1910.
APPEAL from a judgment of the Superior Court of Kern County. J. W. Mahon, Judge.
The facts are stated in the opinion of the court.
W. W. Kaye, for Appellant.
Carter Carter, for Respondent.
The controlling question involved upon this appeal relates to the sufficiency of an amended answer filed by defendant pending the hearing of a motion for judgment upon the pleadings. This amended answer was filed before the trial of an issue of law raised by a demurrer to the original answer The effect of filing such amended answer, if properly filed, was to supersede the original answer. ( Kuhland v. Sedgwick, 17 Cal. 123.) The permission to amend a pleading once as of right before the trial of such issue is authorized by section 472, Code of Civil Procedure. Were it even conceded that the motion for a judgment on the pleadings performs the same office as a demurrer, and therefore the section should be construed as only permitting such amendment as of right before an issue of law is heard under a motion presenting the issues which would be involved in a general demurrer, nevertheless, it appears from the record that the amended answer was on file before such motion for judgment was disposed of. A stipulation was filed that the motion was submitted upon briefs thereafter to be filed. The effect of such stipulation is a submission upon the filing of such briefs. The amended answer was filed before the time allowed for filing briefs had expired. If the amended answer was sufficient to raise an issue of fact, the court erred in rendering judgment on the motion directed against the original answer. If, upon the other hand, the amended answer presented no defense, the trial court was warranted in rendering judgment. ( Benham v. Connor, 113 Cal. 171, [45 P. 258].)
The complaint alleged a loan by plaintiff to defendant without agreement as to time of repayment. The answer denied that no time for repayment was agreed upon, but alleged that the same was to be payable when plaintiff and an associate paid to defendant a certain $6,000, which they had agreed to pay when a patent was issued for certain land. It is alleged that such patent has never issued, but it is not averred that the $6,000 has not been paid. The event which should mature the loan was the payment of the money. Construing the answer under the rule "that the pleading is to be construed most strongly against the pleader, and that no intendments can be indulged in its aid" ( Callahan v. Loughran, 102 Cal. 481, [36 P. 836]), it must be presumed that if the money had not been paid, that such fact would have been averred.
The payment of the money not being negatived, we see no error in the record, and the judgment appealed from is affirmed.
Shaw, J., and James, J., concurred.