Utah Ass'n of Credit Men v. Bowman

113 P. 63, 38 Utah 326, 1911 Utah LEXIS 3

• Court: Utah Supreme Court
• Decided: January 13, 1911
• Docket: No. 2174
• Status: Published

Opinions

BRICK, J.

This is an original application to this court for a writ of mandate. The application is in the form of an affidavit in wbicb substantially the following facts are made to appear:

The defendant J. M. Bowman is the judge who presides over the Civil Division of the City Court of Salt Lake City, and the defendant B. S. Bives is ex eoffcio the clerk of said court. On the 18th day of July, 1910, the plaintiff caused a summons to be issued out of the Civil Division of said court in an action commenced by the plaintiff herein against one A. L. Ball, which summons was duly and timely served on said Ball on the 26th day of July 1910, and a return of such summons in due time and a proper form was made and filed in said action, and on the 22d day of July, 1910, plaintiff duly filed its verified complaint against said Ball with the clerk aforesaid. Plaintiff then sets forth a copy of the complaint filed in the action aforesaid, from which it is made to appear that the plaintiff stated a good cause of action against said Ball upon an account for good'*, sold and delivered by the Anderson Taylor Company, a corporation, to said Ball, upon which account there remained then unpaid the sum of forty-four dollars and seventy-four cents, which was duly assigned to the plaintiff, and for which it demanded judgment against said Ball. In said affidavit it is further stated on the 22d day of August, 1910, no appearance had been made by said Ball in said action, and that he was in default, and that such default had been duly and regularly entered by said clerk against said Ball; that thereafter, and on said last-named date, plaintiff requested said clerk to enter judgment in favor of plaintiff and against said Ball upon said default for said sum of forty-four dollars and seventy-four cents and four dollars and forty cents, in accordance with the demands of plaintiff’s complaint; that said clerk wrongfully refused to enter said judgment, which refusal is based upon the sole ground that said J. M. Bowman, the judge of said court, “had directed him (said clerk) to enter no default judgments;” that on the same day in said city court, and in open court, the plaintiff moved for judgment against said Ball for the amount aforesaid, which judgment was asked upon the papers filed in the action, and for the reason that said Ball was in default, which had been duly entered by the clerk as aforesaid. The judge denied the motion upon the sole ground that he had requested the plaintiff to submit evidence or proof in support of the allegations in the complaint, which plaintiff declined to do, but insisted upon judgment by default. The plaintiff in his application prayed that the defendants be required to enter judgment as prayed for, or show cause why they should not be compelled to do so-. An alternative writ was duly issued, to which both defendants appeared, and in separate demurrers assailed the application upon the ground that the facts therein stated are insufficient to entitle plaintiff to the relief prayed for, or to any relief. The case has been submitted upon said demurrers.

The application for the writ is based on subdivision 1 of section 3179, Comp. Laws 1907, which reads as follows: “In an action arising upon contract for the recovery of money or damages only, if no answer, demurrer, or motion has been filed with the clerk of the court within the time specified in the summons, or such further time as may have been granted, and the complaint and proof of service of summons shall have been filed, the clerk, upon application of the plaintiff, must enter default of the defendant, and immediately thereafter enter judgment for the amount specified in the complaint, including costs, against the defendant. ... If the complaint shall not have been- verified, it must be verified before judgment is entered.” The foregoing provisions, when enacted, were intended to, and did, apply only to the district courts. In 1901, however, when the city courts were created, the provisions were made applicable to the city courts. (Laws Utah 1901, p. 115, section 28 [Comp-. Laws 1907, section 68.6x29].) The provisions were, however, in force long before the territorial government was merged into a state government. During territorial days they were contained in Comp-. Laws 1876, section 1376. From that compilation they were carried into volume 2, Comp. Laws 1888, p. 278, in which they constituted subdivision 1 of section 3345. After statehood the provisions were carried into liev-St. 1898, as section 3179, from whence they were copied into Comp. Laws 1907 as section 3179, as before stated. Tracing the history of the provisions further, we find that since 1872 they were part of section 585 of the California Code of Civil Procedure, and that they existed prior to that time, as is shown from a reference to them by Mr. Chief Justice Field in his opinion rendered in the case of Kelley v. Van Austin, 17 Cal. 564, which was decided in April, 1861. We also find that Mr. Justice Em.erson of the Supreme Court of the Territory of Utah, in the case of Nounnan v. Toponce, 1 Utah 168, referred to the provisions as early as May 1874. By reference to the decisions of other courts, which are hereafter referred to, it will be seen that similar provisions existed and have been in force in many of the states of the Union ever since the reformed procedure became effective in 1848, and no doubt had existed in some form, either statutory or as a rule of court, long before that time. Upon the latter subject, see Fidelity Deposit Co. v. United States, 187 U. S. 321, 322, 23 Sup. Ct. 120, 47 L. Ed. 194.

Notwithstanding this venerable history, the statute is now assailed by both the clerk and the judge of the city court as being unconstitutional for the reason that it confers judicial functions upon a mere ministerial officer. In this connection it is strenuously urged that from the terms of the statute themselves it is plain that before entering a default judgment the clerk must exercise his judgment in determining whether the conditions required by the statute exist or have been complied with, namely: (1) Is the action one coming within the purview of the statute? (2) Is the complaint properly verified ? (3) Has summons been issued and served upon the defendant ? (4) Is the defendant legally in default ?

Conceding that the clerk, before entering a default, must determine whether or not the foregoing conditions exist, yet it does not necessarily follow that in doing so he acts in a judicial rather than in a ministerial capacity in entering judgment. It very often happens that a ministerial officer; before he is required to act, must determine whether or not some condition or particular fact upon which his official act is based exists. If the law imposes the duty upon the officer to act after determining that the condition or fact upon which he must act exists, and he finds, or concedes, that the condition is present or that the fact exists, then he acts in obedinece to the law imposing the duty, and his act is ministerial, and not discretionary nor judicial. After an officer concedes that all the conditions which impose upon him the duty to act exist, and the law invests him with no discretionary power with regard to the official act required of him, then the officer cannot excuse his refusal to act upon the ground that he had to exercise judgment in ascertaining the existence or nonexistence of the facts upon which his act is based. Under such circumstances, the facts being conceded, the official act is imposed by law which the officer must obey. This principle is illustrated in the eases cited by Mr. Merrill in his work on Mandamus, sections 30, 48, to which we refer. It is also illustrated in another form by this court in State v. Morse, 31 Utah 213, 87 Pac. 705, 7 L. R. A. (N. S.) 1127, where, after the facts were found, we required the judge of the district court to enter a, specific judgment. Moreover, an official act may be quasi judicial or discretionary, yet if the discretion is qualified, and the refusal to perform the act is merely capricious, 1 arbitrary, or wrongful, the officer may, nevertheless, be coerced by mandamus to do the act. This is elementary doctrine. If the principle is applied to the statute under consideration, no difficulty will be found in determining that the clerk acts purely ministerially in entering a judgment upon default. True, he must look to the complaint, and from it determine whether the action is one contemplated by the statute. He must, in the same way, determine whether the complaint is duly verified. Whether a proper summons has been issued and properly served on the defendant, the clerk determines from an inspection of that instrument and the return showing the service. When he has determined these things, all that is left for him to determine is whether the time witbin which the defendant must appear has elapsed. This he does by merely comparing dates. When the clerk concedes, therefore, that the action in question comes within the statute; that the complaint is properly verified; that a proper summons has been issued, and has been duly served upon the defendant in the action; and that the defendant is in default — then, by virtue of the statute, it becomes the duty of the clerk to “enter judgment for the amount specified in the complaint, including costs, against the defendant.” This duty is imposed by law, and the clerk has no discretionary powers with respect thereto. Ilis act in 2, 3 entering such a judgment is no more judicial or discretionary than his act in entering a judgment upon the verdict of a jury or the findings of the court would be. In either case the law imposes the duty, and in entering the judgment the clerk merely executes what the law requires of him.

It is contended, however, that before a judgment can be entered it must be rendered or pronounced by virtue of some legal authority, and that rendering a judgment necessarily implies a judicial act. In this connection to have recourse merely to the usual definitions of a judgment does not aid us much, if at all, in arriving at a correct solution of the questions involved in this proceeding. To arrive at such a solution we must bear in mind that every judgment may be viewed in a double aspect. In one view a judgment represents the result of the mental operation of someone clothed with the legal power to hear and determine questions of fact or mixed questions of law and fact. The final conclusion or result arrived at after considering the facts and circumstances submitted to such a person, may be called the judgment. In arriving at the result the person pronouncing judgment no doubt acts judicially. Such a judgment, therefore, is the result of some mind acting judicially; and such a judgment, like all judgments, is entered to enable the one in whose favor it is rendered to enforce it. In another aspect a judgment may not require any mental operation at all. In case the facts and conditions upon which the judgment is based are conceded or not disputed, tbe law may direct wbat tbe judgment shall be, and in sucb event may also designate tbe person wbo shall enter tbe judgment which tbe law directs. Sucb a judgment, like tbe one pronounced by someone with authority, is also entered so that it may be enforced. Tbe latter judgment, however, is not based upon tbe result obtained by consideration of and weighing and conflicting or disputed facts, but is directed by law upon conceded or undisputed facts. Tbe person entering sucb a judgment, therefore, acts merely as tbe agent of tbe law, and in doing so acts in a ministerial and not in a judicial capacity. It is entered, however, for tbe same purpose that tbe first one is, namely, that tbe party wbo is entitled to certain relief may enforce it.

Tbe question of whether tbe person wbo is clothed with tbe power of entering judgment where tbe facts are conceded, as upon a default after personal service, acts judicially or ministerially has frequently been before tbe courts, and, while tbe decisions are apparently not strictly in harmony, there is, in principle, no great difference among them. In tbe case of Kelley v. Van Austin, supra, Chief Justice Field referring to tbe capacity in which tbe clerk acts in entering judgment under tbe foregoing provisions, states tbe doctrine in tbe following words: “Tbe clerk in entering judgment upon default acts in a mere ministerial capacity. He exercises no judicial functions. Tbe statute authorizes tbe judgment, and tbe clerk is only an agent by whom it is written out and placed among tbe records of tbe court.” In a later case, namely, Bond v. Pacheo, 30 Cal. 536, Mr. Justice Sawyer, in referring to wbat Mr. Justice Field bad said in tbe preceding case, states that in sucb proceedings, in entering judgments, to some extent at least, “tbe clerk exercises tbe functions of tbe court.” By this is meant that tbe judgment, although entered by tbe clerk, is, nevertheless, in contemplation of law, tbe judgment of tbe court in which it is entered. This doctrine is also sustained and applied in Wallace v. Eldredge, 27 Cal. 496, Providence Tool Co. v. Prader, 32 Cal. 634, 91 Am. Dec. 598, and other later California cases. Tbe question bas also been before tbe Supreme Court of Oregon, as appears from tbe cases of Graydon v. Laxton, 3 Ore. 251, Crawford v. Beard, 12 Ore. 447, 8 Pac. 537, and Talbot v. Garretson, 31 Ore. 256, 49 Pac. 978. Tbe Oregon Supreme Court follows California, and expressly bolds that tbe statute is not open to tbe objection urged against it by tbe defendants. Tbe same doctrine is upheld by tbe courts of Wisconsin, Florida, Iowa and New York, as will be seen from tbe following well-considered cases: Well v. Morton, 10 Wis. 468; Frankfurth v. Anderson, 61 Wis. 107, 20 N. W. 662; Gamble v. The Jacksonville, etc., Ry. Co., 14 Fla. 226; Fred. Miller Brewing Co. v. Capital Ins. Co., 111 Iowa 590-597, 82 N. W. 1023, 82 Am. St. Rep. 529; Bullard v. Sherwood, 85 N. Y. 253. See, also, Sperling v. Calfee. 7 Mont. 525, 19 Pac. 204, and Nounnan v. Toponce, 1 Utah 168, where tbe statute was considered in tbe light of tbe organic acts creating tbe Territories of Montana and Utab, and where both territorial Supreme Courts held that in entering judgments under tbe statute tbe clerk acts merely in a ministerial capacity. For other cases we refer tbe reader to 23 Cyc. 758, where tbe doctrine is stated in accordance with tbe foregoing views and where other cases are referred to. Tbe question is also discussed in 1 Freeman on Judgments (4th Ed.), section 38, where tbe author, in referring to judgments upon default entered by tbe clerk, says: “Tbe ministerial act of tbe clerk must be supported by a judicial act pronounced by tbe court in express terms, or incontem-plation of law. Tbe clerk is, in some contingencies, authorized to enter judgment by default; but in these instances tbe court, in contemplation of law, pronounces tbe judgment, though, as a matter of fact, no action may be taken by tbe presiding judge.” Tbe view, as expressed by Mr. Freeman, is tbe view entertained by tbe Supreme Courts of Florida, Iowa, and Wisconsin, as will be seen by reference to tbe cases we have cited from those states. In 1 Black on Judgments (2d Ed.), section 88, tbe same doctrine is announced.

Tbe only court, so far as we are aware, that bas held to tbe contrary view is tbe Supreme Court of Illinois, as appears from the case of Hall v. Marks, 34 Ill. 358. Tbe reasoning in that case is, however, not satisfactory nor of compelling force. Moreover, that case is greatly weakened by the admission therein made that a clerk has the power to enter judgment by confession and that in doing so he acts entirely in a ministerial capacity. It seems to ns that if it be conceded that a clerk may enter judgment by confession, then it logically follows that he may, when authorized by a proper statute, also enter judgment upon default if he complies with the conditions imposed by the statute. To make default after personal service is tantamount to an admission that the plaintiff is entitled to a judgment as prayed for by him under a statute like the one under consideration. Snch is the great weight of authority. In 23 Cyc. 752, the law upon that subject is clearly and tersely stated in the following language: “A default is an admission of every material and traversable allegation of the declaration or 4 complaint necessary to plaintiff’s canse of action that the defendant is the person named in the writ and intended to be served, and that the court has acquired jurisdiction of his person, and hás jurisdiction' of the cause of action. Also admits the due execution of the note, contract, or other instrument sued on.” Further on, at page 753, it is said: “If the amount of his (plaintiff’s) damages is ascertainable by mere calculation, the defendant admits his right to recover the sum demanded in the declaration or complaint, and judgment may be entered therefor.” In Hunt v. City of San Francisco, 11 Cal. 259, it is said: “A default confesses all the issuable facts,” and it is further held that a default amounts to a confession of “indebtedness ... on the account alleged in the complaint.” In Schueler v. Mueller, 193 Ill. 402, 61 N. E. 1044, it is held that a default admits all the facts in the complaint that are well pleaded. To the same effect is Smith v. Carley, 8 Ind. 451. In Hershey v. MacGreevy, 46 Ark. 498, Mr. Chief Justice Cock-rill, in passing upon the effect of a default in an action upon an account, said: “Upon failure to answer the material allegations of a complaint, they stand admitted.” It was ae-eordingly beld that plaintiff was entitled to judgment upon the account for the amount thereof when verified, without further proof. In Bosch v. Kassing, 64 Iowa 312, 20 N. W. 454, it is said: “A default is an admission of the cause of action stated in the complaint.” Mr. Iustice Finch, in his opinion in Bullard v. Sherwood, 85 N. Y. 256, in speaking of the effect of a default under statutory provisions like ours, says: “The party, therefore, who makes default in presence of these provisions practically consents to such entry of judgment. He thereby admits that he is indebted in the full amount claimed and concedes that judgment should be entered for that sum.” It is further held in that case that under statutory provisions like those under consideration the law in effect directs the judgment, and that “the sum demanded must be awarded, and no discretion is left anywhere.” The same doctrine is maintained, although under different circumstances, in the case of Corthell v. Mead, 19 Colo. 392, 35 Pac. 741. See, also, 1 Black on Judgments (2d Ed.), section 84.

It is deemed unnecessary to multiply cases upon this point. We may say in passing, however, that we have found no well-considered case which announces a contrary doctrine. Nor can we perceive any good reason why the foregoing doctrine is not entirely sound. Under the practice prevailing in this state the summons which is served on the defendant, in explicit terms, admonishes him that in case he fails to appear and defend the action “judgment will be rendered against you according to the demand of the complaint.” When thus admonished and he deliberately fails to appear or answer the cause of action, by what course of reasoning can it be said that the defendant is not willing that such a judgment be entered against him? No other legally can be. Is his silence not a tacit admission that he owes the plaintiff what he claims? The only difference between entering a judgment by confession and entering one upon default under such a statute is that, in the first instance, the defendant in proper terms expressly confesses judgment, while in the second he tacitly consents by his silence that judgment may be entered against bim for tbe amount claimed in the complaint. In entering judgment, therefore, in either case, the clerk acts merely ministerially, and with either the expressed or implied consent of the defendant. The question, therefore, raised by the defendants, whether considered in the light of the great weight of authority or upon principle and sound reason, must still be answered in the same way, namely, that the provisions contained in subdivision 1 of section 3179, supra,, are both reasonable and constitutional, and that in enforcing them the clerk acts ministerially merely.

But if we entertained a substantial doubt upon the question the result would still have to be the same, for the reason that the practice of entering judgments upon default in obedience to the provisions of said section has prevailed too long in this jurisdiction to be disturbed by the judiciary unless the unconstitutionality of the statute is palpably clear. The serious consequences that inevitably result from declaring prior judgments void are ordinarily alone sufficient to deter the courts from taking any action that will prejudicially affect the rights acquired under such judgments, unless the law compels such action. In this case, as we have pointed out, both law and reason are in favor of upholding judgments that are entered upon default by the clerk.

The only remaining question, therefore, is in view of the conceded facts, what relief, if any, should be granted in this case ? As we have pointed out, the judge and clerk are both made parties to the proceeding, and both have separately demurred. The only excuse the clerk offered- at the hearing was that the statute is unconstitutional and that the judge had “directed him (the clerk) to enter no de- 5 fault judgments.” If we are right in our conclusions so far, then the clerk has offered no legal excuse for refusing to enter judgment as requested in this case by the plaintiff. The clerk cannot shield himself behind a mere general order of the judge in a matter over which the judge has no control. The judge of the city court has absolutely nothing to do with a case until a party to an 6 action, or some one interested therein, invokes bis judgment in some legal manner. It is palpable that if the judge may upon his own motion prevent the clerk from entering default judgments under the statute in question, then the order of the judge and not the provisions of the statute control. The judge in the absence of discretionary power, is the mere agent of the law, and, in the absence of some inherent power, may exercise those powers only which are conferred upon him by statute. Under the provisions of the statute in question the duty and the legal power to enter default judgments are imposed and conferred upon the clerk, and hence, by implication at least, are withheld from the judge. If in such a case the judge may not direct what judgment shall be entered, he may not direct when and under what circumstances it shall be entered. No doubt, if before judgment is entered the defendant properly invokes the judgment of the judge with respect to any matter that affects the right to enter judgment, the judge has power to act, and the clerk’s power to enter judgment may be suspended until the judge has determined the question presented for determination. If the judge should determine that some element is lacking which authorizes the entering' of judgment, when his judgment is properly invoked, as aforesaid, when the clerk is shorn of his power to enter judgment by default. This is well illustrated in the case of Elder v. Grunsky, 127 Cal. 67, 59 Pac. 300. But before some interested party invokes the judgment of the judge in a legal and proper manner, he is as powerless to interfere with the duties of the clerk in entering judgment upon default as the clerk is powerless to interfere with the orders of the judge if made upon a proper motion or other proceeding in a pending case.

From what has been said it follows that it was the duty of the clerk to enter a judgment as prayed for in plaintiff’s complaint. This was a legal duty. When the clerk refused to perform a legal duty which the plaintiff was entitled to have performed, we think it was proper for it to call the fact to the attention of the judge of the city court, and by motion or otherwise invoke the aid of the judge. The judge had tbe -undoubted right to require the clerk of his court to comply with a positive statutory provision, and where there were neither disputed nor conflicting facts, and 7 the law had been complied with, it was also the duty of the judge to direct the clerk to proceed to discharge the duty imposed on him by the statute. If the clerk refused after being directed by the judge he would clearly be in contempt of court and subject to punishment. While in this case the motion denied by the judge did not strictly conform to the foregoing suggestions, yet it is clear that both the judge and the clerk fully understood what the plaintiff desired to obtain by the motion. In this regard substance rather than form must control. The clerk 8 therefore wrongfully refused to perform a legal duty, and the judge wrongfully or illegally refused to require the clerk to perform such duty. In view, therefore, that the judge has refused to compel the clerk to act, we must now-do what the judge ought to have done. It is therefore ordered that a peremptory writ of mandate issue against the clerk requiring him to enter judgment as prayed for in plaintiff’s complaint filed in the action to which reference has been made in this opinion.

In view of all the facts and circumstances of this case, the action against the judge should be dismissed, and the plaintiff should not be awarded costs. It is so ordered.

STBAUP, I., concurs.