If a demurrer to the complaint in such actions be filed by the defendant the same shall be heard and determined within six days from the date of service of a copy upon counsel for the plaintiff and relator, and if the demurrer is sustained, plaintiff and relator will be given not to exceed five days to amend the complaint, and if it is overruled then the defendant shall have a like time to file the answer, provided that upon good cause shown the court may extend the time of either party, but in no event shall the time be extended to either party more than four days. The issue as finally made shall stand for trial forthwith; and no continuance of any such cause shall be granted upon the application of either party unless he shall show the absence of a witness or other testimony and they shall be deemed material by the court. The plaintiff or relator may traverse or offer counter evidence to the facts set forth in such application for continuance.
History: Laws 1919, ch. 28, § 8; C.S. 1929, § 115-108; 1941 Comp., § 26-208; 1953 Comp., § 22-15-8.
Cross references. — For the abolition of demurrers except in special statutory proceedings where the existing rules conflict, see Rules 1-001 and 1-007C NMRA.
Erroneous for court overruling demurrer to render final judgment. — It is a fundamental rule of law that it is ordinarily erroneous for a court on overruling a demurrer (now a motion) to render final judgment. State v. Rodriguez, 1958-NMSC-136, 65 N.M. 80, 332 P.2d 1005.
No provisions for demurrer to amended complaint which is sustained. — This statute makes no provisions for a case where the amended complaint has been filed, followed by a second demurrer (now a motion) which is sustained and an appeal taken to the supreme court. State v. Rodriguez, 1958-NMSC-136, 65 N.M. 80, 332 P.2d 1005.
If second demurrer overruled on appeal, time to answer given. — Where an amended complaint was filed in quo warranto action, and second demurrer (now a motion) thereto was sustained, and, on appeal to supreme court, the demurrer (now a motion) was, in effect, overruled, defendants should be granted statutory time within which to answer. State v. Rodriguez, 1958-NMSC-136, 65 N.M. 80, 332 P.2d 1005.
Am. Jur. 2d, A.L.R. and C.J.S. references. — 65 Am. Jur. 2d Quo Warranto §§ 95, 98.
74 C.J.S. Quo Warranto §§ 40, 41.
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