Harding v. Cowing

28 Cal. 212 | Cal. | 1865

By the Court,

Shafter, J.

This is an action upon a note payable in gold coin of the United States. The defendants were duly served, and on failure to answer, defaults were duly taken, and a judgment for the recovery of one thousand two hundred and twenty dollars in gold coin, with interest thereon, was thereafter entered against them by the Clerk. The question is, whether the Clerk, as such, had power to enter the judgment without judicial direction.

The action was brought for the recovery of “ money only”— (Practice Act, sec. 150,)—for a particular kind of money, but still a recovery of nothing but money was sought, and that fully liquidated in amount. The default admitted the facts stated in the complaint. Thereafter, no question could have been raised except by'motion to set aside the default, or, perhaps on motion in arrest. No such motion was made, and every point within the purview of a motion in arrest, is within the purview of this appeal. The plaintiff was entitled to a judgment for gold coin, and the statute pronounced the judgment of the law arising upon the facts stated in the complaint. As was held in Wallace v. Eldridge, 27 Cal. 498, “ the Clerk adjudged nothing; he was merely the hand that entered the judgment of the law.” The relief was sub modo special, but still “ the action was for'money only;” and the relief provided for in the judgment is the relief dictated, identically, by the law. The judgment is in no just sense the judgment of the Clerk. His head did not conceive it; it was merely written out by his hand. ,

Judgment affirmed.