18 Colo. 6 | Colo. | 1892
delivered the opinion of the court.
This case was advanced upon the docket of this court for hearing and determination with the understanding that certain constitutional questions, publiei juris, with reference to an act in relation to bonded indebtedness of counties, approved April 17, 1889, were to be submitted. In the argument of counsel, however, several questions are raised which must be considered in limine. One of these questions is absolutely fatal to tbe judgment of the district court, and hence this is the only question that need be considered upon this review. If counsel desired a determination of the constitutional questions discussed, they should have waived these preliminary matters. This they have not done.
The action was brought by certain taxpayers of Yuma county, suing on behalf of themselves and all others similarly situated. The object of the action is to restrain the issuance of bonds in satisfaction of certain judgments theretofore entered against the county by the clerk of the county court of Yuma county in vacation, upon confessions of judgments filed by Quitman Brown, the then county attorney.
In addition to the constitutional objections, it is contended by appellants that these judgments were not rendered by the county court, but were entered by the clerk in vacation by confession, at a time when the clerk had no jurisdiction to enter any judgment by confession.
By the terms of the second section of the act under which the defendants were attempting to proceed, they were authorized to issue bonds in satisfaction of judgments against the county. It requires no argument to demonstrate that a judgment entered by the clerk without jurisdiction will not
It is claimed by appellants that the clerk had no authority to enter judgments by confession, and that judgments so entered in vacation are absolutely void: For a number of years, there existed in this state a statute authorizing the entry of judgments by confession, and prescribing the procedure in such cases. See Civil Code, 1877, chap. XXVII. For reasons that were satisfactory to the legislature this provision of the code was, however, repealed in 1887, and no provision of similar import has since been enacted upon the subject.
It is well settled that clerks of courts of record in this state are purely ministerial officers and have no judicial authority whatever. The authority of the clerk to enter judgments by confession, if it exists, must have its basis in some statute authorizing such proceedings. At the time these judgments were entered, no such statute existed in this state.' Code, sec. 168, relied upon by appellees to support the judgments referred to, will not avail. This section provides that in certain kinds of actions “ If no answer, demurrer, or motion has been filed with the clerk of the court within the time specified in the summons, or such further time as may have been granted, the clerk, upon the application of the plaintiff, shall enter the default of the defendant and immediately thereafter, if the complaint shall have been or shall then be properly verified, enter judgment for thep amount specified in the summons, including the costs against the defendant or defendants, who are so in default.” The clerk neither exercised nor attempted to exercise the powers conferred by this provision. This is admitted by the pleadings;
In the case of Schuster v. Rader, 13 Colo. 329, it is said:
“ Under statutes authorizing judgments by confession in vacation through the agency of the clerk, there being no judicial determination of the controversy, the act of giving judgment in such cases is called the ‘entering’ rather than the ‘ rendering ’ of judgment.”
In the same opinion it is also said:
“ Without undertaking to lay down a rule applicable to all cases, we are satisfied that, where a judgment has been entered by confession, without action, unless the statute authorizing such entry has been complied with in all substantial particulars, the enforcement of the judgment may be enjoined upon principles of equity at the suit of a third party prejudiced thereby; also that, if a judgment by confession be not entered in fact substantially as required by the statute, an execution in advance of such entry will be postponed in favor of a junior execution or attachment creditor who has regularly made a levy based upon valid proceedings.”
This being true where the statute authorizes the entry of judgment by the clerk d fortiori, such judgments must be open to attack by third parties, where, as here, there is an entire absence of statutory authority for the judgment.
In support of the conclusion reached by the district court, our attention is invited to sec. 281 of the Code. This section relates exclusively to offers of compromise, and has not
It is urged that the matters relied upon to reverse the judgment should not be considered upon this review, because, as it is claimed, they were not properly excepted to below and are not within the assignments of error filed in this court. The record shows, however, that plaintiffs excepted to the ■final judgment, and error is duly assigned thereon. Plaintiff’s right to a review of the question discussed in this opinion is therefore saved. In the oral argument before this court, a defect of parties defendant was claimed for the first time. If counsel relied upon this objection, they should have presented it to the court below. It not having been presented in proper time, it will not be considered: Great West M. Co. v. Woodmas of Alston M. Co. et al., 12 Colo. 46.
Under the admissions of the pleadings in this case, the judgments of the county court did not warrant the issuance of bonds under the statute, and the judgment of the district court should have been for plaintiffs. The latter must therefore be reversed, but as it has been suggested in argument that the facts do not fully appear from the pleadings as they now stand, the cause is remanded, with leave to the parties to apply to the court below for permission to replead as they shall be advised.
Reversed.