14 P.2d 749 | Cal. | 1932
Lead Opinion
This is an appeal from an order vacating a default judgment.
The action is one to recover on a promissory note. Defendant was personally served with summons on October 1, 1927. Purporting to act under subdivision 1 of section 585 of the Code of Civil Procedure, and upon application therefor, the clerk of the court below entered the defendant's default. Such default was premature, having been improperly entered one day prior to the expiration of the period within which an answer or demurrer might have been filed. Judgment upon such premature default was not entered by the clerk until three days later, at which time the defendant's answer had been filed. Approximately two years after the entry of such judgment the defendant moved the trial court to vacate the same. From the order granting the requested relief the plaintiff prosecutes this appeal.
There can be no doubt as to the impropriety of the clerk's action in prematurely entering the defendant's default. (Subd. 1, sec. 585, Code Civ. Proc.) [1] In the absence of a defaultregularly entered, it was also improper for the clerk to enter a formal judgment at a time subsequent to the filing of the defendant's answer. It is well settled that a plaintiff's failure to have the defendant's default regularly entered is an implied grant of further time to the defendant in which to appear in the action. (Tregambo v. Comanche Mill Min. Co.,
[4] Examination of the authorities satisfies us that a judgment entered by the clerk under subdivision 1 of section 585,supra, at a time when the defendant's answer is on file and upon a default prematurely taken, is void and may be set aside at any time. The clerk in entering judgments upon default acts in a mere ministerial capacity. He exercises no judicial functions. The statute authorizes the judgment and the clerk is only the agent by whom it is written out and placed among the records of the court. The statute is the measure of his authority. In exercising the power conferred he must conform strictly to the provisions of the statute or his proceedings will be without binding force and any judgment entered by him will be void. (Kelly v. Van Austin, supra; Junkans v. Bergin,
"Consequently in some states provision is made by statute for the entry of a default judgment by him [clerk] in such cases without the intervention of the court. But even here, as in the case of his preliminary entry of default, he acts ministerially and is confined strictly to limitations of the statute. . . .
"`The clerk derives all his powers from the statute, and as they are special, no intendments are to be made in support of his act, but in each case it must appear that what *411 he did was within the authority conferred on him by the statute; and whether the act done by him be considered as purely ministerial or of a mixed nature, partaking of elements both ministerial and judicial, is of no practical importance. The question is, Had he authority to enter the defendant's default and thereupon judgment final against him as the case stood at that time?' If this question is answered in the negative, or in other words, if the clerk had no authority to enter the default, or if, having authority to enter the default, he had no authority to enter judgment thereon, then any judgment entered by him without the direction of the court is void, [citing, among others, many California cases] though there is some authority to the contrary."
Our conclusion that the judgment herein is void and may be set aside at any time finds support in Reher v. Reed, supra. In that case the plaintiff's answer to the cross-complaint, though tardily presented, was nevertheless filed prior to the clerk's purported entry of default and judgment on said cross-complaint. Though the motion to vacate was there made within thirty-five days after the entry of the default and judgment, this court, in affirming the order vacating the judgment, declared:
"But it was not necessary to resort to section 473 or to determine whether or not, as an application under that section, the grounds were well stated. The clerk is not authorized to enter a default unless no answer has been filed `within the time specified in the summons or such further time as may have been granted'. (Code Civ. Proc., sec. 585) When a party, after the time expressly granted for filing a pleading against him has expired, suffers further time to elapse without taking any action thereon, and in the meantime the pleading is served and filed, he, by such conduct, in effect grants the additional time and the party is not strictly in default. The clerk is not authorized to enter a default for failure to file an answer when such answer is on file at the time such default is attempted to be entered. This was expressly decided in Tregambo v. Comanche Co.,
In announcing our conclusion herein we are not unmindful ofGray v. Hall,
Spaulding Co. v. Chapin,
Hallock v. Jaudin,
The judgment entered in California Casket Co. v. McGinn,
The fact that the clerk in entering a default and judgment is, in effect, the agent of and acting for the court, does not alter our conclusion. As already stated, he performs a purely ministerial function. He can only enter judgment upon a default duly and regularly entered. His premature entry of such default and judgment constitutes an excess of the very limited jurisdiction conferred upon him, and is a nullity. The default and judgment here entered were, as already shown, premature and void. Being void, they may properly be set aside by the court at any time, regardless of how the invalidity is brought to its attention. And, its jurisdiction and duty to set such a default and judgment aside is not affected by the character of the defendant's answer to the complaint.
It necessarily follows that the order vacating the default and judgment herein must be and it is hereby affirmed.
Shenk, J., Seawell, J., Curtis, J., Tyler, J., pro tem., and Langdon, J., concurred.
Concurrence Opinion
I concur in the conclusion and judgment, but I think this cause serves to make clear the error the court fell into in Gray v.Hall,