Rose v. Lelande — 20 Cal. App. 502

Majority

p. 502

[Civ. No. 1260.

Second Appellate District.

December 3, 1912.]

RUTH M. ROSE, Petitioner, v. A. J. LELANDE, as County Clerk, and Ex-officio Clerk of the Superior Court of Los Angeles County, State of California, Respondent.

Headnote

Action Against Officer and Surety—Pleading—Insufficient Answer—Admissions—Mandamus.—The plaintiff in an action on a verified complaint against a defendant sued as a member of a board of public works, and against a corporation defendant, sued as surety on the other defendant’s official bond, is not entitled to a writ of mandamus to compel the entry of the default of such defendants, by the county clerk, on the ground that their answer is insufficient in not averring the character and relations of the defendants. The failure of the defendants to answer the verified complaint, in that regard, admitted those allegations to be true.

Id.—Absence of Official Power of Clerk to Pass upon Insufficiency of Answer.—Conceding the answer to be defective, irregular or insufficient to constitute a defense, the clerk has no judicial power to pass thereon. The clerk, in entering a default, acts ministerially, and in no case is he warranted in making such entry where his authority so to do depends upon a determination of the sufficiency, either as to substance or form of a document on file purporting to constitute an answer to the complaint.

p. 503

Id.—Power of Court to Determine Sufficiency of Answer—Default for Want of Answer Stricken Out—The question as to the sufficiency of the answer was one for the court to determine, either upon a motion for judgment on the pleadings, or upon a motion to strike the answer from the files. Upon the granting of the latter motion, there being no answer on file, and the time for pleading to the complaint having expired, the clerk would be warranted in entering a default.

APPLICATION for Writ of Mandate to the County Clerk of Los Angeles County.

The facts are stated in the opinion of the court.

E. M. Barnes, for Petitioner.

This is an ex parte application for an alternative writ of mandate directed to H. J. Lelande, county clerk and ex officio clerk of the superior court of Los Angeles County, commanding him to enter the default of defendants in a certain action pending in said superior court, wherein petitioner is plaintiff and Adna R. Chaffee, sued as a member of the board of public works of the city of Los Angeles, and his official surety, alleged to be a corporation, are defendants, or show cause for his failure so to do.

The petition shows that defendants, within due time, filed their answer to the complaint. Petitioner, however, contends that the purported answer is insufficient for the reason that it is not made to appear therein that Chaffee is a member of the board of public works, or that his codefendant is a corporation. The complaint wherein these facts are alleged is verified, and since the answer does not deny them, they are deemed admitted. Moreover, conceding the answer to be defective, irregular, or insufficient to constitute a defense, the clerk possesses no judicial power to pass thereon. The question as to the sufficiency of the answer was one for the court to determine upon a motion for judgment upon the pleadings, or motion to strike the purported answer from the files, upon the granting of which latter motion, there being no answer on file and the time for pleading to the complaint having expired, the clerk would be warranted in entering a default. The clerk in entering a default acts ministerially, and in no case is he

p. 504

warranted in making such entry where his authority so to do depends upon a determination of the sufficiency, either as to the substance or form, of a document on file purporting to constitute an answer to the complaint.

The application is wholly without merit and is, therefore, denied. *

Allen, P. J., and James, J., concurred.