Winter v. Winter

By the Court,

None of the points assigned for error are well taken. The complaint would have been held sufficient as a declaration at common law upon a general demurrer. Luttrel's Case, 4 Co. 88 (b); Ashley v. Ashley, 4 Gray, 197; Story v. Odin, 12 Mass. 157; Willers v. Ball, 1 Shower, 7; 2 Saunders, 113, et seq.; Jackson v. Savage, Skinner, 316; Prickman v. Tripp, Skinner, 389; Com. Dig. Pleader, C. (39); 1 Chitty Pl. 380-381; Ib. 391-2; Northam v. Hurley, 72 Eng. C. L. Rep. 665. The demurrer was therefore properly overruled. The complaint does state that the plaintiff was entitled to the water. It is true ' this allegation is by way of recital, but no such objection was specified in the demurrer, and it is well settled that it can not be insisted upon under a general demurrer. It is clear that the complaint does not state a prescriptive right in the defendant. There is no allegation that the diversion and use of the water by the defendant was under claim or color of right.

The defendant was not entitled, as a matter of absolute right, to answer after the demurrer was overruled; and prior to the entry of the judgment he made neither showing nor suggestion of a defense on the merits.

We can not consider the propriety of the ruling on the motion to set aside the judgment, for the reason that the *136appeal from tbe motion was not taken witbin tbe time prescribed by tbe statute.

An entry of default was not a prerequisite to tbe judgment. Tbis was not a “judgment upon failure to answer”: quoad hoc tbe demurrer was an answer. 31 Cal. 27.

Tbe appeal from ¿be order is dismissed, and tbe judgment appealed from is affirmed.