Todd v. Everett

THE COURT. Petitioners seek by mandamus to compel the clerk of Colusa County to enter the default of defendant in the action of Todd v. Kalfsbeek, Executor, number 12451, in the Superior Court in and for Colusa County and to prohibit that court from taking further proceedings pending a final determination of their petition for a writ of mandate.

The record before us shows: On May 16th petitioners as plaintiffs filed a complaint seeking damages arising out of an automobile accident. The allegedly negligent party in the action was Addie Francis Kalfsbeek, who died after the accident and before the action was brought. The sole defendant (and he was so designated in the complaint) is “Asa J. Kalfsbeek, Executor of the Last Will of Addie Kalfsbeek, deceased.” The defendant in his representative capacity (real party in interest herein) was served with summons on May 19, 1966. No responsive pleading was filed within the time allowed by law. (We are told in petitioners’ memorandum of points and authorities that real party in interest received several extensions of time orally but did not appear within the time agreed upon. The accuracy of the claim is not germane to this decision—it will be for the trial court if a proceeding for relief from default is brought.) On August 2, 1966, petitioners sent to the clerk for filing (1) the original summons with the return of service as indicated; (2) a request for entry of default. The printed form of request in material [211]part reads: “To the Clerk of Said Court: The defendant Asa J. Kalfsbeek having been regularly served with.process, and having failed to appear and answer the plaintiff’s complaint on file herein, and the time allowed by law for answering having expired, application is hereby made that you enter the default of said defendant, herein according to law.”

The clerk did not enter the default as requested. On or about August 11, 1966, an answer was submitted by real party in interest and purportedly filed by the clerk. On August 16, 1966, the clerk returned both the summons and the request for default to petitioners’ attorneys advising them that “there is a technicality in the request for default in that it does not agree with the service of the Summons.”

Thereafter proceedings were instituted by petitioners for an order by the superior court to strike the answer of defendant as untimely and to cause the clerk to enter defendant’s default nunc pro tunc. Both motions were denied by the court on September 15, 1966. Real party in interest then moved for a summary judgment. This proceeding followed.