People v. DeCarrillo

By the Court, Sprague, J.: This is an action to recover delinquent taxes, commenced in the First Judicial District Court, San Bernardino County. Due service was made upon defendants. In due time defendant Dunlap appeared and filed his answer, disclaiming all interest in the property assessed. After the time limited for the answer of the other defendants had expired, upon application of the District Attorney for San Bernardino County, the Clerk indorsed their default upon the complaint. Thereafter, at a special term of said District Court, on motion of the District Attorney, the cause was transferred to the District Court of the Third Judicial District, in and for the County of Santa Clara, the Judge of the said First Judicial District being related to one of the defendants, within the third degree of consanguinity. Thereafter, January 20th, 1868, on motion of defendants, in the Third District Court, the default entered as aforesaid by the Clerk of the First District Court was set aside, with leave to answer. Defendants then filed an answer, denying generally the allegations of the complaint, without verification. The cause was then, on the 21st of January, 1868, by counsel of the respective parties, submitted to the Court upon the pleadings, com[40]plaint, and answer, and motion of plaintiff for judgment upon the pleadings against all the defendants except defendant Dunlap, and by the Court taken under advisement. Thereafter, on the 23d of January, 1868, the following order was entered: “The Court now, having fully considered this cause, finds in favor of defendants, and orders judgment to be entered in their favor accordingly;” which was accordingly done on the same day.

Plaintiff’s bill of exceptions shows that the order setting aside the default, of defendants, and granting them leave to answer, was duly excepted to at the time, and that exceptions were duly taken and filed to the finding and judgment filed and entered against plaintiff on the 23d of January, 1868.

The objection to the order of the Court setting aside the default of the defendants, indorsed on the complaint by the Clerk of the First District Court, is urged, upon the ground that the motion of defendants to set aside the default thus entered and for leave to answer, was made and order entered upon “the sole ground that the Clerk of the First Judicial District Court had no authority to enter said default, because of the disqualification of the Judge of the said First Judicial District.”

The entry of a default by the Clerk in a case authorized by statute is a ministerial act, and the disqualification of the Judge of his Court to try or render judgment in the case does not disqualify the Clerk from performing this ministerial act, but under our statute in relation to proceedings in certain cases (Stats. 1863-4, p. 399) a default is deemed made by defendants in a tax collection case on failure of defendants to appear within the time prescribed, without entry of the same by the Clerk; hence the entry by the Clerk in the case was a work of supererogation.