McLaughlin

This is an action upon a promissory note for four hundred dollars, executed by the defendant to the plaintiff on December 27,1887, and payable four months after date, with interest.

The complaint was filed October 27, 1888. The answer admitted the making of the note, and that plaintiff was the owner and holder thereof, and that no part of the same had been paid. It then sets up facts which it was claimed constituted a defense to the action.

The plaintiff demurred to the answer upon the ground that it did not state facts sufficient to constitute a defense, and the demurrer was sustained. The defendant declined to amend his answer, and thereupon judgment was entered in favor of the plaintiff.

From that judgment the defendant appealed to this court, where it was held that the facts set up in the answer were sufficient if true to constitute a defense to the action. The judgment was accordingly reversed, and the court below was directed to overrule the demurrer. (McLaughlin v. Clausen, 85 Cal. 322 .)

The remittitur was filed in the court below on September 19, 1890. Thereafter, as shown by the minutes of the court, the case was on April 6,1891, “set for trial April 28, 1891.” On…