Davidson v. Graham
Before: Chipman
Synopsis
Judgment—Mandamus to Compel Entry of Default—Demurrer to Petition—Admission.—On demurrer to a petition for mandamus to compel a clerk of the superior court to enter the default of the defendant the allegations of the petition must be taken as true.
Id.—Default of Defendant—Saving by Filing of Demurrer.—A demurrer filed by the defendant in an action on a bond is an appearance and an “answer” within the meaning of the provision of section 585 of the Code of Civil Procedure, that “if no answer has been filed with the clerk of the court, within the time specified in the summons or such other time as may have been granted, the clerk, upon application of the plaintiff, must enter the default of the defendant.”
Id.—Demurrer—Necessity of Disposing of Before Entry of Judgment.—It is irregular to enter a judgment against a defendant in whose behalf a demurrer has been filed, without disposing of the demurrer, and a judgment so entered will be reversed on appeal.
Id.—Entry of Default—Mandamus to Compel—When Does not Lie.—Where a stipulation is on file “that no default shall be taken against the defendant, he waiving his demurrer,” and there is a doubt as to the right of the plaintiff to take a default and as to the duty of the clerk to enter it, the entry will not be compelled by mandamus.
Id.—Clerk Will not be Compelled to Perform Acts in Conflict with Court Orders.—If the plaintiff has been refused an order by the trial court putting the defendant in default, an appellate court will hesitate to command the clerk to enter a default. The rule that a court will not compel parties to perform acts which will subject them to punishment or put them in conflict with the order or writ of another court, applies where a clerk is asked to perform an act that will put them in conflict with a valid order made by the same court in the same action and upon the same matter.
Id.—Trial on Merits—Policy op Law to Permit.—It is the policy of the law that every case should be tried upon its merits, and where it is sought to prevent this upon a showing which presents no circumstances of hardship to the party asking the relief, and the case is one where the right to the relief is doubtful, the parties should be remitted to a trial upon the merits.
CHIPMAN, P. J.
This is an application for a writ of mandate commanding defendant to enter the default of A. T. Karry in a certain action wherein Mattie E. Davidson is plaintiff and Samuel Hinckley and A. T. Karry are defendants, now pending in the superior court of San Joaquin County.
It appears from the amended petition that the action above referred to was commenced to recover judgment upon a bond, in which Hinckley and Karry were sureties, to stay execution in a certain action entitled Emanuel Gjurich, Plaintiff,
v.
Fanny Fieg, Defendant, pending in the superior court of San Joaquin County. Petitioner is assignee of the assignee of plaintiff in said action last referred to. Summons in the present action was duly served on Karry, February 13, 1913, and, on July 28, 1913, he filed therein a general demurrer and a demurrer also to the jurisdiction of the court. It further appears from the petition that, on August 18, 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.
[486]
Karry, shall have to and inclusive of September 15, 1913, in which to file and serve his answer on the merits. Dated this 18th day of August, 1913.
“ ‘Webster, Webster & Blewett,
“ ‘Attorneys for Plaintiff.
“ ‘I agree to the above stipulation:
“ ‘A. H. Carpenter,
“ ‘Attorney for Defendant, A. T. Karry.
“ ‘By Walter P. Lynch, Clerk.’ ”
The demurrer above referred to was similarly signed. It is alleged that Mr. Lynch was authorized by Mr. Carpenter to sign both the demurrer and stipulation in his name and that both were signed with the knowledge and consent of Karry. We understand that no question is now raised as to Lynch’s authority to act in the matter.
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