Hodgdon v. Goodspeed, 118 P. 167

Hodgdon v. Goodspeed

118 P. 167 | Or. | 1911

Mr. Justice Moore

delivered the opinion of the court.

1. It is insisted that the petition for the review did not *4state facts sufficient to authorize the issuance of the writ, in refusing to quash, which, an error was committed. A petition in such case must describe with convenient certainty the decision or determination of the inferior court, officer, or tribunal complained of, set forth the errors alleged to have been committed, be signed by the plaintiff or his attorney, and verified by the certificate of an attorney of the court, to the effect that he has examined the process or proceeding, and the decision or determination therein, and that the same is erroneous, as alleged in the petition. The petition, the sufficiency of which is assailed, alleges in effect that the defendants in the proceeding, Goodspeed and Holden, are the county judge and clerk, respectively, of Tillamook County; sets out copies of all the papers filed in the action mentioned, and the orders made and the judgment rendered therein, as hereinbefore stated; avers that the county court exercised its judicial functions erroneously, and exceeded its jurisdiction, to the injury of the substantial rights of the plaintiffs herein, setting forth in concise order the .errors alleged to have been committed. The petition is also verified by the certificate of an attorney of the court in the manner prescribed. The adverse parties and the court were thus advised of the particular questions to be determined, and the errors alleged to have been committed are assigned with particularity. The petition complied with the requirements of the statute, and was sufficient to authorize the issuance of the writ. Southern Oregon Co. v. Coos County, 30 Or. 250 (47 Pac. 852); White v. Brown, 54 Or. 7 (101 Pac. 900).

2, 3. It is maintained that the circuit court did not have jurisdiction of the cause, and for that reason an error was commited in denying the motion to quash the writ. It is argued that the entry of the judgment by the county clerk was a ministerial act, the performance of which cannot be reviewed. A ministerial act *5consists in the discharge of some duty enjoined by law upon one or more persons, who, in obeying the rule prescribed, exercise no judgment or discretion regarding the matter. 5 Words and Phrases, 4523. Review is the statutory remedy, enacted in lieu of certiorari, and the writ and its return are employed to determine whether or not an inferior court, officer, or tribunal, in the exercise of judicial functions, has applied such power erroneously, or has exceeded the jurisdiction conferred. Section 605, L. O. L. Judicial or quasi judicial acts only can be reviewed. Harris, Certiorari, § 48; Thompson v. Multnomah County, 2 Or. 34; Burnett v. Douglas County, 4 Or. 388. In an action arising upon contract, for the recovery of money or damages only, if no answer be filed within the time limited, the clerk, upon the plaintiff’s written application therefor, is required to enter the default, and thereupon to give judgment for the sum demanded against one or more of the defendants who have been rendered amenable by appearance or service of process. Section 185, L. O. L. In entering a judgment upon default, the clerk acts in a ministerial capacity, exercises no judicial funtions, and must conform -strictly to the provisions of the statute, or his proceedings will be without any binding force. Kelly v. Van Austin, 17 Cal. 564.

4. When the clerk is authorized to enter judgment upon default, but, in the employment of the power conferred, makes a mistake as to the amount due plaintiff, the judgment is not void, but erroneous; but, where he enters a judgment which is wholly unauthorized, the judgment is void. Bond v. Pacheco, 30 Cal. 530.

5, 6. When a void judgment is called to the attention of a court in which it was entered, it is incumbent upon that tribunal to purge its records of the nullity by canceling the entry. Huffman v. Huffman, 47 Or. 610 (86 Pac. 593: 114 Am. St. Rep. 943); Rynearson v. *6Union County, 54 Or. 181 (102 Pac. 785). If upon application a void judgment is not set aside, the invalidity is attempted to be upheld, whereby the court, in refusing to discharge the duty thus devolving upon it, exercises judicial functions erroneously. Though a void judgment can be collaterally assailed, the better rule, in our opinion, supports the principle that a writ of review will lie to cancel the entry of a void judgment, when a court refuses to perform that duty. 4 PI. & Pr. 49. We conclude that the trial court had jurisdiction of the cause, and that no error was committed in refusing to quash the writ on that ground.

7. The remaining question is whether or not the judgment entered by the county clerk against the defendants in the action, but who are plaintiffs herein, is void. It will be remembered that an amended complaint had been filed in the action, but that no time had been prescribed by the court in which an answer should have been filed. The statute regulating the practice in such cases is as follows:

“If the complaint be amended, a copy thereof shall be served on the defendant or his attorney, and the defendant shall answer the same within such time as may be prescribed by the court; and if he omit to do so, the plaintiff may proceed to obtain judgment as in other cases of failure to answer.” Section 70, L. O. L.

Due service of the amended complaint had been admitted by defendants’ counsel, so that jurisdiction of the subject-matter and of the parties had been secured. As no time had been fixed in which an answer should have been filed, the defendants were not in default. If judgment had been rendered against them by the court, instead of the clerk, it is quite probable that, because they were not given all the time allowed by law to plead, the judgment would not have been a nullity, or subject to collateral attack. Woodward v. Baker, 10 Or. *7491; Altman v. School District, 35 Or. 85 (56 Pac. 291: 76 Am. St. Rep. 468). Judgment in such cases, though considered irregular, are not treated as void, on the ground that the parties being in court must take notice of all proceedings therein by which their interests are affected, in so far as the court determined from an inspection of the papers before it that the cause was ripe for judgment, and any mistake in that particular constitutes only an error. This principle can have no application to a county clerk in entering a default and judgment, for, having no judicial power, he exercises only statutory authority, and if he fails to observe the several requirements thereby imposed upon him, or governing the proceedings, the judgment he attempts to enter is void. Kelly v. Van Austin, 17 Cal. 564.

Believing the judgment brought up to the circuit court for review was void, no error was committed in annulling the entry and in remanding the cause, with directions to fix a time in which the answer should be filed.

It follows that the judgment appealed from should be affirmed, and it is so ordered. Affirmed.