[No. 3,534.]
Junorarur on Demübbeb.—When a demurrer to the complaint is sustained, and the plaintiff’s application to amend his complaint is denied, the case is finally disposed of by the Court, and it becomes the duty of the Clerk, without any directions from the Court or Judge, to enter the appropriate judgment in the records of the Court.
Application to the Supreme Court for a writ of mandate.
The plaintiff applied to the Supreme Court for a writ of mandate. He set forth, in his petition, that in November, 1866, he commenced an action in the District Court of the Sixteenth Judicial District, for the county of Inyo, (of which District the defendant was and is Judge) and that, in May, 1867, the Court sustained a demurrer to the complaint, and refused to allow him to amend his complaint. That he had often requested the Judge and Court to render judgment one way or the other, but that no final judgment had been entered in the action by the- Clerk, because the Court had not pronounced one. A writ of mandate was asked to compel the Judge to pronounce judgment. The defendant, in his answer, admitted that he had pronounced judgment on the demurrer, but denied that he had refused to allow the plaintiff to amend his complaint provided he could so amend. The petition was filed September 14, 1872,. The petitioner moved for judgment in this Court on the pleadings.
The parties seem to be at issue upon a mere point of form. The demurrer to the complaint was sustained, and *347the plaintiff’s application to amend was refused. This amounted to a final disposition of the cause, and it therefore became the duty of the Clerk, in the absence of special directions from the Judge, to enter the appropriate judgment in the records of the Court.
Mandamus denied.
Neither Mr. Justice Crockett nor Mr. Justice Rhodes expressed an opinion.
49 Cal. 346
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