Willson v. Cleaveland
30 Cal. 192
Cal.
1866
Check Treatment
By the Court, Sanderson, J.:

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 *198power over it by an adjournment of the term. There is nothing counter to this in De Castro v. Richardson, or Willson v. McEvoy, 25 Cal. 49 and 169. In the latter case the District Court had denied a motion for new trial and then adjourned for the term. At the next term a motion was made to set aside the order, and we held that the Court had lost jurisdiction of the case, for the obvious reason that the order denying a new trial was a final disposition of the case, and there was nothing left ¡lending and undetermined which could carry it over to the next term. In the former the Court had made an order extending the time for preparing a statement on motion for a new trial, and at the subsequent term a motion was made to amend the order so as to include the notice of intention to move for a new trial, which the party had failed to serve within the statutory time, under the impression, as claimed, that the notice of motion was also embraced in the order of the previous term. There was nothing in the record to amend by, and we held that the Court could not therefore at a subsequent term enlarge the order. Both cases are readily distinguished from this. The motion here is made before final judgment and is not to amend the record of a previous term.

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 *199certain motions made by the defendant relating to the complaint. What further time the defendant was to have after the decision of the motions the order did not specify, obviously for'the reason that it could not well be done owing to the nature of the case, and for the very sufficient reason that it was altogether unnecessary that it should be done, if at all, until after the motions were finally determined. From the nature of the motions, which were to strike out certain portions of the complaint and rule the plaintiff to an election between different counts, the defendant could not be expected to file his answer eo instanti upon their decision. That would have been impossible, for he would have necessarily required time to prepare his answer after he had learned the fate of his motions—whether decided for or against him. If the latter, he would be entitled to such time as the Court might then fix; or in case the Court prescribed no time, he would be entitled to a reasonable time after notice of the decision, which by analogy would be the time allowed by the statute for answering in other cases. If the former, the plaintiff would have to make his election and serve notice thereof on the defendant, and regularly he should serve him with a copy of the complaint in its new form at the same time. Until then the defendant could not prepare his answer, and in the absence of any order requiring him to answer in a less time, he would be entitled to the time allowed by the statute in other cases. The notice of election was served on the 30th of March, and on the 3d of April following, on motion of the plaintiff, the Clerk entered the default of the defendant. Assuming that the Clerk had any power at all to enter a default in a case situated as this was, which is at least doubtful, he certainly had no power to do so at the time he made the entry. Under the circumstances, as already shown, the defendant had at least until the expiration of ten days from the 30th of March to file his answer. The default was therefore a nullity, and might have been disregarded for all the purposes of the case; but as it encumbered the record, the defendant was entitled to have it removed, and tfie Court was authorized to remove it *200upon a bare suggestion, without doing more than calling the attention of the plaintiff to its action, and without any affidavit of merits on the part of the defendant.

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*201ant’s entry ? and anything which shows that he was not is but matter in rebuttal, and competent evidence for the defendant under the general issue, upon the same principle that the defendant may defeat a recovery where the plaintiff relies upon strict title, and there is only the general issue by showing that the plaintiff has convéyed to him or a third party and the title is still outstanding..

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 *202with the facts of this case he was entitled to prove them as tending to rebut the alleged abandonment. Upon a question of abandonment, as on a question of fraud, a wide range should be allowed, for it is generally only from facts and circumstances that the truth is to be discovered, and both parties should be allowed to prove any fact or circumstance from which any aid for the solution of the question can be derived.

Judgment reversed and a new trial ordered.