Hayes

Joseph C. Hunter instituted an action in the superior court of San Diego County against petitioners, who interposed a demurrer to the complaint. This demurrer, submitted without argument, was overruled, at which time the court made an order as follows: “Defendant is permitted to answer within ten days upon terms of payment of ten ($10) dollars to plaintiff or his attorneys.” Defendants (petitioners here), without paying to plaintiff or his attorneys the sum imposed as a condition of answering, presented to the county clerk, with request that he file the same, their answer to the complaint. The clerk refused to file the answer, alleging as a reason for his refusal the fact that defendants had failed to comply with the condition prescribed in the order. Peti tioners ask for a writ of mandate directed to the clerk of the court requiring him to file the answer.

Section 472 of the Code of Civil Procedure, provides, among other things, that “when the demurrer to a complaint is overruled and there is no answer filed, the court may, upon such terms as may be just, allow an answer to be filed.” Section 473 contains a like provision. Under this provision, no question exists as to the power…