Page v. Superior Court

The Court. The record of the action for divorce, wherein the petitioner is the plaintiff and Emily C. Page is the defendant, having been brought here by certiorari, the petitioner prays that certain orders of the superior court (relating to alimony and counsel fee) be declared null, because they were made after an entry in the clerk’s “register of actions” dismissing the action for divorce.

The register of actions is a book in the possession and under the control of the clerk, and in the absence of evidence to the contrary, all entries in the book are presumed to have been made by the clerk. For aught that appears, the entry of the dismissal of Page v. Page is in the handwriting of the clerk. On the face of the record the dismissal is attested by a deputy clerk. The entry is regular in form. (Code Civ. Proc., sec. 581.)

But no judgment was “entered accordingly.” (Code Civ. Proc., secs. 581, 668.) The direction to enter a judgment in the judgment-book is mandatory, because it imposes a public duty upon a ministerial officer. In [374]a proper case, if the clerk’s fee is paid, he will, on motion either of the plaintiff or defendant, be compelled by the superior court to enter a judgment of dismissal or non-suit; the court will not require of the party interested to resort to mandamus. But until the judgment is entered, the action is not dismissed.

It is very commonly said that where no answer or demurrer is filed in an action for money only, the plaintiff may take a default and judgment. The clerk must, on application of the plaintiff, enter the default, and immediately thereafter a judgment. When it is said that an action may be dismissed, or a judgment of non-suit entered by the plaintiff himself, no more is meant than that he may apply to the clerk for the entry of dismissal in the clerk’s register, and a judgment accordingly. It would not be contended that the plaintiff dismisses an action by requesting the clerk to enter a dismissal in the register of actions, even though the action be one which the plaintiff has clearly the right to have dismissed. It was for the legislature to declare what should constitute the evidence of dismissal; and the statute requires both the entry in the register and the. entry of a judgment. The power of the clerk to enter a judgment depends upon his power to make an entry of dismissal in the register. He has no power to enter a dismissal in the register if a counterclaim has been made by the defendant. True, in determining in a particular case whether he shall make the register entry, the clerk enters into an inquiry quasi judicial, but this does not make him a judicial officer. A ministerial officer is frequently required to make such an inquiry antecedently to official action. When the validity of the entry in the register or of a judgment thereon is attacked, either directly or collaterally, the validity of the entry or judgment, and the power of the clerk to make it, must be decided by reference to the pleadings in the action.