34 Cal. 25 | Cal. | 1867
Due service of summons having bisen made on defendant in another County and district, a demurrer was filed within the forty days allowed him to answer. After the forty days had expired, in vacation, the plaintiff’s attorney filed his own, and his client’s affidavit, showing that no copy of the demurrer had been served, either on the plaintiff or his attorney, and, thereupon, in pursuance of a rule of the Court, the Clerk, upon plaintiff’s ex parte application, entered defendant’s default and final judgment for want of an answer. Defendant subsequently, under section sixty-eight of the
The Clerk clearly had no jurisdiction to hear the plaintiff’s application for default and judgment based upon his affidavits. This was a question for the Court alone. The Clerk can render judgment only in the precise eases designated by the statute. Section one hundred fifty only authorizes him to enter judgment by default in an action for money, or damages arising on a contract, “ if no answer has been filed with the Clerk of the Court within the time specified in the summons.” bio thing is said about serving. And a demurrer is an answer within the meaning of the provision, otherwise a default might be entered in all cases where a demurrer only has been served and filed. Another section, it is true, requires an answer, or demurrer, to be served upon the adverse party, or his attorney, when such party or his attorney resides in the same county in which the action is pending. (Section 38.) But the Clerk has no means of knowing Avhat has been done, beyond what is disclosed by his files and the record made in the regular course of procedure, and, when an answer is filed in due time, he has all that he is authorized to look to in order to determine whether a default is due or not. If the party has, in fact, failed to serve the answer or demurrer, questions will arise which the Legislature have not seen fit to intrust to his determination. He Avould be called upon to determine a question of fact, as to the residence of a party, upon evidence outside the record and files. It might be a litigated question, requiring evidence pro and con, involving the credibility of witnesses, and the consideration and determination of other incidental questions liable to arise in the course of the litigation. These are purely judicial functions, which only the Court itself has jurisdiction to perform. It would hardly be claimed that the Clerk would have jurisdiction, under the statute, to act in such a case independent of the rule of the Court. But it
But, if we concede the authority upon a proper showing, there was still no sufficient showing made to justify the order in this instance. Service of a demurrer, or answer, is not in all cases required. It is only necessary, when “the adverse party or his attorney lives within the county in which the action is pending.” (Section 38.) It does not appear by the affidavits that either resided in the county where the action was pending. Neither the Clerk nor this Court, therefore, can judicially kn'ow that a service of a copy of the demurrer was required by the statute.
We are inclined to think, also, that, upon the showing made, the motion to open the default should have been granted.
Judgment and order reversed with leave to defendant to answer within ten days after receiving notice of .the filing of the remittitur in the District Court.
Mr. Justice Shaeter expressed no opinion.