129 P. 599 | Cal. Ct. App. | 1912
This is an ex parte application for an alternative writ of mandate directed to H. J. Lelande, county clerk and ex officio clerk of the superior court of Los Angeles County, commanding him to enter the default of defendants in a certain action pending in said superior court, wherein petitioner is plaintiff and Adna R. Chaffee, sued as a member of the board of public works of the city of Los Angeles, and his official surety, alleged to be a corporation, are defendants, or show cause for his failure so to do.
The petition shows that defendants, within due time, filed their answer to the complaint. Petitioner, however, contends that the purported answer is insufficient for the reason that it is not made to appear therein that Chaffee is a member of the board of public works, or that his codefendant is a corporation. The complaint wherein these facts are alleged is verified, and since the answer does not deny them, they are deemed admitted. Moreover, conceding the answer to be defective, irregular, or insufficient to constitute a defense, the clerk possesses no judicial power to pass thereon. The question as to the sufficiency of the answer was one for the court to determine upon a motion for judgment upon the pleadings, or motion to strike the purported answer from the files, upon the granting of which latter motion, there being no answer on file and the time for pleading to the complaint having expired, the clerk would be warranted in entering a default. The clerk in entering a default acts ministerially, and in no case is he *504 warranted in making such entry where his authority so to do depends upon a determination of the sufficiency, either as to the substance or form, of a document on file purporting to constitute an answer to the complaint.
The application is wholly without merit and is, therefore, denied.
Allen, P. J., and James, J., concurred.