The motion to set aside the default of the defendant entered by the Clerk, did not come too late because it was made after the adjournment of the term. No final judgment had been rendered and the case was still pending at the time the motion was made. The question is one of jurisdiction, and the District Court does not lose jurisdiction by adjournment before the case has been finally determined. All unfinished business is continued by operation of law until the next term. It is only where the case has been finally disposed of and nothing further remains to be done that the Court loses all further
But the appellant’s case, so far as it rests upon any supposed errors of the Court in setting aside the default, is fully answered by the fact that the default itself was utterly void, and the defendant and the Court were at liberty to so regard it. The Clerk in entering defaults exercises no judicial functions, but acts merely in a ministerial capacity, and unless he confines himself strictly within the statute his acts can have no binding force. (Stearns v. Aguirre, 7 Cal. 443; Kelly v. Van Austin, 17 Cal. 564; Glidden v. Packard 28 Cal. 651.) In cases like the present the Clerk is authorized to efiter the default of the defendant only where he has failed to file his answer within the time specified in the summons, or within such further time as may have been granted by the Court. In this case the order extending the time did not fix a date within which the answer must be filed, but in general terms postponed the time for answering until after the decision of
II. The Court did not err in striking out a portion of the complaint. If the portion stricken out was inserted by way of description, as claimed, it was nevertheless not needed for that purpose, and, moreover, was blended with matters of evidence which never can be tolerated in a pleading. (Coryell v. Cain, 16 Cal. 567; Green v. Palmer, 15. Cal. 411.)
III. Nor did the Court err in refusing to strike out the defendant’s answer because it was not signed by the defendant or his attorney of record. The name of the attorney who first appeared in the case was at the foot of the answer, in connection with the name of other counsel. This was sufficient for the Court, and the Court was not bound to try the question whether the signature was genuine or put there by associate counsel without any express authority. There is nothing in the case of the Commissioners of the Funded Debt of San Jose v. Younger, 29 Cal. 147, which is counter to this view.
IV. Nor did the Court err in not ruling the defendant to an election between the denials of his answer and the separate defense of the Statute of Limitations. A defendant may deny the title of the plaintiff and also plead the statute. Such are not inconsistent defenses even within the rule as contended for by counsel. (Bell v. Brown, 22 Cal. 671.)
V. Nor did the Court err in allowing the defendant to prove abandonment of the premises by the plaintiff, because an abandonment was not pleaded. Where the strict legal title is not involved, and the plaintiff relies upon a right to recover founded upon a naked possession, the defendant may defeat a recovery by proving that the premises were abandoned by the plaintiff before the alleged entry of the defendant, and were therefore at the time of the entry ¡pullid juris, and he may do this under a simple denial of the plaintiff’s right to the possession. In such case the issue is: Was the plaintiff entitled to the possession at^tlie date of the defend
VI. The defendant was not estopped by the judgment in Miller’s action against him for an unlawful detainer of the premises from showing a prior possession in himself. The estoppel against a tenant in favor of his landlord’s title does not endure longer than the tenant’s possession under the lease. After the possession has been restored to the landlord the tenant is released from the estoppel, and if he has a paramount title he may bring it forward. (Doe ex dem Knight v. Lady Smithe, 4 M. & S. 348; Jackson ex dem Shaw v. Spear, 7 Wend. 401; Glen v. Gibson, 9 Barb. 634; James v. Landon, 1 Croke, 36.) The judgment in question was only conclusive upon the questions in issue, which were: First—Whether there was a lease, and, second, whether the defendant had refused to surrender possession at the end of the term. The title was not and could not, from the nature of the case, be put in issue in that action, and herein lies the distinction between this case and Jackson v. Rightmyer, 16 John. 314, which was an action of ejectment.
VII. We think, however, that the Court erred in excluding the evidence offered by the plaintiff upon the question of abandonment. The fact that he was inexperienced in farming and relied upon the advice of Crane and Lando, and that’they advised him to allow the land to lie fallow, would tend at least to explain why the plaintiff did not cultivate the land. It may have been entitled to but little weight as evidence, but if it was competent, and we think it was, he was entitled to its benefit. So also in regard to his efforts to procure the passage of the Act to prevent the re-entering of parties dispossessed by legal process. If he could connect those efforts
Judgment reversed and a new trial ordered.