*339Opinion by
Turnee, Associate Justice.The defendants in error, who were plaintiffs in the Court below, commenced an action against the plaintiff in error in the District Court of the First District, holding terms at Walla Walla, to recover the sum of four hundred and ninety-nine and eighty-eight one-hundredths dollars, with interest, for the breach of a contract, etc.
The summons and complaint were served on the 29th day of May, 1883, and judgment by default against plaintiff in error was taken at chambers on the 20th day of June, 1883. The plaintiff in error, by its attorney, on the 30th day of May, 1883, the day after, the service of the summons and complaint, filed with the Clerk of the Court a general demurrer to the complaint.
The Court refused to regard the demurrer, because, as stated in argument, the demurrer was not served upon the opposite side, as required by one of the rules of the District Court; and it being considered there was no sufficient appearance other than by the demurrer, judgment by default was taken against plaintiff in error for failure to answer.
The rule of the Court requiring service of demurrer upon the opposite party, if not intended to be invoked here to sustain the action of the Court below, should have been made a part of the record of this case.
The rules of the trial Courts are a part of the record of every cause tried in such Court, and may be certified to an appellate Court as a part of such record. We are not at liberty, in the absence of such certification, to receive and act upon the rule of Court in question.
The action of the Court below, therefore, in allowing judgment by default, notwithstanding the interposition of the demurrer by plaintiff in error, must be considered upon the law as we find it upon the statute book, unaffected by the said rule. We are quite certain that the filing of the demurrer with the Clerk was a sufficient compliance with law to constitute an appearance, and that judgment by default, without action upon the demurrer, and without notice to the defendant below, was grave error.
Under the circumstances, it should not require an affidavit of meiits to entitle the defendant to have the judgment vacated.
*340The error was not a mere irregularity. It was more. It was a denial to the defendant of substantial rights.
The action of the learned Judge below was predicated on the rule, which is not before us now, and was perhaps justifiable under said rule. i
We have serious doubts, however, of the legality of a rule which could be construed as requiring service of a .demurrer, to constitute such demurrer on appearance, under Section 72 of the Code.
The judgment is reversed, and the cause remanded for further proceedings.
We concur: John P. Hoyt, Associate Justice.
Roger S. Greene, Chief Justice.