53 Cal. 253 | Cal. | 1878
This action was brought under the provisions of sec. 1847 of the Political Code, for the recovery of a district school tax. Judgment by default was entered by the Clerk. The summons notified the defendant that if he failed to appear and answer the complaint, the plaintiff “ will take judgment against you by default for the above named sum and accruing costs.” .
It is provided by sec. 1852 of the Political Code that “ the law regulating proceedings in civil cases in the Courts of justice in this State, so far as the same are not inconsistent with the provisions of this article, is. hereby made applicable to proceedings under this article.” That article does not contain any provisions prescribing the form of the summons where the suit is against the person indebted for the tax; and therefore it must conform to the provisions of the Code of Civil Procedure. Sec. 407 of that Code provides that in an action other than an action arising on contract for the recovery of money or damages only, the summons must contain a “ notice that unless the defendant appears and answers, the plaintiff will apply to the Court for the relief demanded in the complaint.” The publication of the summons which omitted the above notice did not authorize the Clerk to enter the default of the defendant. The Clerk is authorized by sec. 585 Code of Civil Procedure to enter judgment by default only in “ an action upon contract for the recovery of money or damages only.” In other cases, application for judgment must be made to the Court.
Judgment reversed and cause remanded.
