Funke v. Lyons — 2 Cal. Unrep. 164

Majority

p. 164

FUNKE, Jr., Appellant, v. LYONS et al., Respondents.

No. 8106;

March 8, 1883.

Headnote

Appeal—Order Sustaining Demurrer—Indifference of Respondent.—Where, on appeal from an order sustaining a demurrer, the respondent does not appear and does not file points or authorities, the court is left to reverse the order if the pleading demurred to seems sufficient on its face.

APPEAL from Superior Court, San Francisco.

McAllister & Bergin, Burnett and Bartlett for appellant; Winans, Belknap & Godoy for respondents.

This action was brought to restrain defendants from using plaintiff’s trademark. The defendant demurred on the ground that the complaint did not state facts ■ sufficient to constitute a cause of action. The demurrer was sustained, and from the judgment rendered thereon plaintiff appealed.

On the hearing in this court the demurring parties did- not appear, nor did they file points or authorities. We are therefore not informed as to the points on which the defendants relied, further than we gather from an examination of the complaint and or the appellant’s authorities. From such examination it appears to us that the complaint was sufficient.

The judgment is therefore reversed, and the cause is remanded, with instructions to overrule the demurrer, with leave to defendants to answer.