Lunnun

This is an action of forcible entry under section 1159 , Code of Civil Procedure, and the appeal is by defendants from a judgment in favor of plaintiff. Complaint was filed December 20, 1906, and summons thereupon issued directing the defendants to appear and answer on or before December 26, 1906. On the latter date attorneys for defendants served plaintiff's attorneys and filed with the clerk notice of their appearance for defendants. On the same day an order of court was made giving them three days in addition to the time fixed in the summons in which to plead. On the thirty-first day of December, 1906, and prior to any other or further proceedings in the case, defendants filed with the clerk of the court their verified answer. At the time of such filing no default had been taken against defendants or either of them. Thereafter, and on the same day, and when plaintiff's attorneys were in court and about to proceed with the introduction of testimony in said action, they were served with a copy of the said answer so filed as above stated. Attorneys for defendants thereupon called the attention of the court to the filing of the answer and objected to the introduction of any…

An action in forcible entry. The statement of facts in this case will be found in the decision rendered by this court September 24, 1907, post p. 713. We are satisfied with the views expressed in that opinion, except what is said as to the intendment declared to exist in support of the judgment. The bill of exceptions contained in the record was treated as if entitled to be considered only in connection with the motion of appellant for relief under section 473 of the Code of Civil Procedure on the ground of mistake. In this we overlooked the fact that it was a part of the judgment-roll, and the presumption which, under such circumstances, attached to it, to wit, that it contained all the evidence material to the rulings to which exceptions were reserved and specified therein. This presumption rendered it unnecessary that it should negative the introduction of other evidence bearing upon the point to be considered. ( Hidden v. Jordan, 28 Cal. 301 ; Bedan v. Turney, 99 Cal. 652 , [ 34 P. 442 ].) The bill of exceptions when settled became a part of the judgment-roll (Code Civ. Proc., sec. 950), and the court's record of its own acts, and an appellate court could no more assume that…