California, United States of America
The following excerpt is from W. A. Rose Co. v. Municipal Court for Oakland-Piedmont Judicial Dist., Alameda County, 1 Cal.Rptr. 49, 176 Cal.App.2d 67 (Cal. App. 1959):
Was the filing of the first notice of motion for change of venue on July 12 an appearance? Section 585, subdivision 1, Code of Civil Procedure, provides that judgment may be had in an action upon contract for the recovery of money if the defendant has been personally served and 'no answer or demurrer has been filed with the clerk * * *' or notices there specified, of which a notice of motion for change of venue is not one, within the time specified in the summons or further time granted, and that the clerk must, upon application, enter default and judgment. Section 396b requires that the affidavit of merits and notice of motion for change of venue be filed by the defendant 'at the time he answers or demurs * * *' In Nicholl v. Nicholl, 1884, 66 Cal. 36, 37, 4 P. 882, the court said: 'The affidavit of merits, and demand that the trial be had in the proper county, which were filed before the defendant answered or demurred, were wholly inconsequential. To be of any avail such affidavit and demand must be filed when the defendant appears and answers or demurs. Code Civ.Proc. 396.' In Bagley v. Cohen, 121 Cal. 604, 53 P. 1117, the defendants moved for a change of place of trial without answering or demurring. Their default and a judgment was entered. The defendants moved to set aside the default claiming mistake in the failure to file a demurrer. The defendants appealed from the judgment and the order refusing to set aside the default. The judgment and order were affirmed.
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