Baxter

When the demurrer to the complaint came on for hearing in the court below the point was raised that no certificate of counsel was attached to the demurrer as required by Rule 40 of the superior court of the city and county of San Francisco. The court thereupon granted defendant leave to file an amended demurrer. The amended demurrer was afterward filed containing the missing certificate. Thereafter a motion was made by plaintiff to strike the amended demurrer upon the ground that the filing of the same was without authority of law. This motion was denied. Thereafter the court heard the amended demurrer upon its merits and made its order sustaining the same without leave to amend. Judgment was entered for defendant. This appeal is from the order refusing to strike and from the judgment for defendant.

It is urged that a demurrer to a complaint is not a pleading and cannot be amended after issue joined. The case of Hedges v. Dam, 72 Cal. 520 [ 14 Pac. 133 ], is relied on. That case, however, is authority to the contrary. It holds that a demurrer is a pleading which may be amended as of course under section 472 of the Code of Civil Procedure, before the trial of the issue of law…