17 Cal. 564 | Cal. | 1861
Cope, J. concurring.
This is an action to recover possession of certain mining ground situated in Sierra county. The plaintiff claims title by virtue of a Sheriff’s deed, executed upon a purchase at a sale under an execution issued upon a judgment against certain members of a company known as the Bright Star Mining Company; and the question presented relates to the validity of this judgment.
The action in which the judgment was entered was brought upon a promissory note of the mining company, and the complaint in its title designates twelve persons as composing the company, and in its body avers that they, being jointly indebted to the plaintiff, executed the note to him. The summons was served only upon eight of the defendants, and on their failure to answer, their default was entered. Following the default, the Clerk entered a judgment against the parties served for the amount of the principal and interest of the note; and the objection taken to its validity rests upon his alleged want of authority to enter a separate judgment against a portion of the defendants, the action being upon a joint demand against all.
The objection we think well taken. 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 an agent by whom it is written out and placed among the records of the Court. He must, therefore, conform strictly to the provisions of the statute, or his proceedings will be
Judgment affirmed.
