Davidson v. Graham
Before: Burnett
Synopsis
Mandamus—Compelling Clerk to Enter Default—Sufficiency of Petition for Writ.—To justify the issuance of a writ of mandate to compel the county clerk to enter the default of the defendant in a civil action, it must be shown by the petition for the writ that no answer has been filed within the statutory time, or such further time as may have been granted, and that the plaintiff in the cause has made application for the default.
Id.—Stipulation Waiving Demurrer—Befusal to Enter Default.— Mandamus will not issue to compel the county clerk to enter the default of the defendant in a civil action for failure to answer the complaint within the time specified in a stipulation waiving a, demurrer to the complaint, when the stipulation is signed by the clerk of the defendant’s attorney, and the petition for the writ does not allege that the clerk had authority to sign or that the defendant entered into the stipulation.
Id.—Waiver of Demurrer—Whether may be Accomplished.—There is no statutory provision for waiving a demurrer that has been filed in a cause. To effectually dispose of it, it is probable that an order of court is required sustaining or overruling it or allowing it to be withdrawn.
BURNETT, J.
This is an application for a writ of mandate to compel the clerk of San Joaquin County to enter the default of one A. T. Karry for his failure to answer in a certain action brought against him by said Mattie E. Davidson in the superior court of said county.
The petition herein sets out the complaint in said action, alleges that it was filed, that summons was issued and served upon said Karry, that he appeared and filed a demurrer, which is exhibited. “That thereafter on the 18th day of August, 1913, there was entered into and filed in said action a stipulation in the words and figures as follows, to wit: (Title of court and cause.)
“ ‘It is hereby stipulated and agreed that no default shall be taken against the defendant, A. T. Karry, he waiving his demurrer, and that the said defendant, A. T. Karry, shall have to and inclusive of September 15th, 1913, in the which to file and serve his answer on the merits.
Dated this 18th day of August, 1913.
Webster, Webster & Blewett,
Attorneys for Plaintiff.
A. H. Carpenter,
Attorney for Defendant, A. T. Karry.
By Walter F. Lynch, Clerk.’ ”
That on December 1, 1913, the plaintiff filed with the clerk her demand for the entry of Karry’s default and tendered the legal fee for the same, that the demand was refused, that thereafter upon notice given, a motion was made in the said superior court for judgment against said Karry on the ground that he had suffered default, but that the motion was denied without prejudice, and that, on December 16, defendant Karry filed a demurrer in said action, which is set out.
The claim is that it was the clear, ministerial duty of the clerk to enter the default at the time the said demand was made, and, therefore, that section 1085 of the Code of Civil Procedure as to mandate applies.
It is further contended that the law which “specially enjoins” that duty is found in section 585 of the said code,
[694]
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