by a court commissioner, if no objection is entered in the trial court thereto, nor steps taken to review the same, is a final judgment. 19

20

§ 1412. Process to sustain default judgment. The court must have jurisdiction to make a valid order for publication of summons.2 Where the statute provides that certain actions must be brought in the county in which the defendant resides or is summoned, a judgment based upon service of summons issued to and served by the sheriff of another county is null and void.21 Service of summons by publication, directing defendants to appear within sixty days after the date of the first publication, which gives but nineteen days between the date of the last publication and the day of judgment, does not give the court jurisdiction to enter a default judgment foreclosing a tax lien.22 person sued and served under a wrong name, permitting judgment to be rendered against him by default, cannot restrain a levy of execution thereunder. 23

A

§ 1413. Pleadings to sustain default judgment.—An allegation that "there is now due and owing" a certain sum is a sufficient allegation of non-payment of a note and mortgage sued on to sustain a judgment by default. Allegation of legal conclusions, implying an assignment to plaintiff of a note and mortgage, is sufficient to sustain judgment by default.24 On appeal from a judgment on default, the sufficiency of the complaint is to be tested as on demurrer, and, if the allegations of the complaint are insufficient to sustain the judgment, it will be reversed.25 In allowing a default judgment against plaintiff for failure to demur to or answer defendant's cross-complaint, the complaint is not to be considered.26

Where leave to amend a complaint to recover money is general, default will not be entered as to a cause of action for a certain amount alleged in the original but omitted in the amended com

19 Peterson v. Dillon, 27 Wash. 78, 67 Pac. 397.

20 People v. Wrin, 143 Cal. 11, 76 Pac. 646.

21 Foster v. Cimarron Valley Bank, 14 Okla. 24, 76 Pac. 145.

22 Bailey v. Hood, 38 Wash. 700, 80 Pac. 559.

23 Brum v. Ivins, 154 Cal. 17, 96 Pac. 876.

24 Penrose v. Winter, 135 Cal. 289, 67 Pac. 772.

25 Dame v. Cochiti Reduction etc. Co., 13 N. Mex. 10, 79 Pae. 296.

26 State v. Quantic, 37 Mont. 32, 94 Pac. 491.

plaint.27 A special appearance for the purpose of moving to quash the service of summons does not extend the time for a general appearance and answering to the merits.28 Where plaintiff fails to amend a complaint after leave of court to do so, and is in default on such pleading, the court must dismiss the case on motion of defendant.29 Denial of motion for default for want of answer is largely a matter of discretion with the trial court.30 Where no reply is filed to an equitable counterclaim, judgment thereon should, by the Utah practice, be granted on motion.31

§ 1414. Proof required on default.-Judgment for damages cannot be given without proof, other than the allegations of the complaint.32 An authenticated copy of a foreign judgment sued on may be taken as sufficient proof, in case of default by defendant.33 If the defendant is a non-resident and served by publication, the court must examine the plaintiff or his agent on oath respecting any payments that have been made to the plaintiff on account of such demand, and in any event, where service is by publication, must require proof; also, if the demand is in the nature of an accounting, or is for damages, the court may refer it to a referee or leave the damages to be assessed by a jury.34

§ 1415. Against whom entered. A judgment by default may as well be taken against an administrator as any other party;35 also, against a municipal corporation as well as against a private person.36 Where the action is against defendants severally liable, a portion only being served with process, the clerk can, on application of plaintiff, enter judgment, upon default, against the parties served, without regard to the other parties named in the complaint.37 But otherwise, if they are jointly liable.38 If persons are served with summons who are not named in the

27 Concannon v. Smith, 134 Cal. 14, 66 Pac. 40.

28 Mantle v. Casey, 31 Mont. 408, 78 Pac. 591.

29 Lasswell v. Kitt, 11 N. Mex. 459, 70 Pac. 561.

30 Woodham v. Anderson, 32 Wash. 500, 73 Pac. 536.

31 Dunham v. Travis, 25 Utah, 65, 69 Pac. 468.

32 Ruth v. Smith, 29 Colo. 154, 68 Pac. 278.

P. P. F. Vol. I-58

33 Godding v. Rossiter, 20 Colo. App. 245, 77 Pac. 1094.

34 Cal. Code Civ. Proc., § 585.

35 Chase v. Swain, 9 Cal. 130. 36 Hunt v. City of San Francisco, 11 Cal. 250.

37 Kelly v. Van Austin, 17 Cal. 564.

38 Id.; Junkans v. Bergin, 64 Cal. 203, 30 Pac. 627; Curry v. Roundtree, 51 Cal. 184. Compare Wharton v. Harlan, 68 Cal. 422, 9 Pac. 727;

complaint either by real or fictitious names, it is error to render judgment against them by default.39 Judgment entered by the clerk by default where there has been no service of summons or appearance is utterly void.40 The entry of judgment against a defendant who has been served after the overruling of his demurrer to the complaint, without at the same time entering judgment against a co-defendant not served, is in accordance with the statute.41 A default judgment in ejectment against a nonresident, vacated under a code section, cannot be relied on by a purchaser of the property, where the purchase was made in ignorance of such judgment, and on strength of a chain of title wholly independent of it.42

§ 1416. Default against one not personally served.-A party not personally served with summons may answer on the merits to the original action at any time within one year after rendition of the judgment.43 And upon making a motion and filing an affidavit or answer showing a defense which would bar the action, the judgment will be set aside as to such party.44

46

§ 1417. Effect of. Where the summons has been duly served, a judgment by default amounts to a confession on the part of the defendant of all the material facts in the complaint,45 even though he be erroneously named in such pleading and process. The fact that one defendant who suffered judgment by default is not estopped as to an issue made by the other defendants, upon which they succeeded, does not prevent the judgment upon this issue from being an estoppel between the plaintiff and the defendants who pleaded it.47 In an action upon a joint contract, if one

40 Lyons v. Cunningham, 66 Cal. 42, 4 Pac. 938. See Hyde v. Redding, 74 Cal. 493, 16 Pac. 380; Norton v. Atchison etc. R. R. Co., 97 Cal. 388, 33 Am. St. Rep. 198, 30 Pac. 585, 32 Pac. 452; Reinhart v. Lugo, 86 Cal. 395, 21 Am. St. Rep. 52, 24 Pac. 1089; Spokane Falls v. Curry, 2 Wash. 541, 27 Pac. 477; Yentzer v. Thayer, 10 Colo. 63, 3 Am. St. Rep.

563, 14 Pac. 53; Howard v. Clark, 43 Mo. 344.

41 Edwards v. Hellings, 103 Cal. 204, 37 Pac. 218.

42 Randall v. Barker, 67 Kan. 774, 74 Pac. 240.

43 Cal. Code Civ. Proc., § 473. 44 San Diego Realty Co. v. McGinn, 7 Cal. App. 264, 94 Pac. 374.

45 Rowe v. Table Mountain Water Co., 10 Cal. 441.

46 Brum v. Ivins, 154 Cal. 17, 96 Pac. 876.

47 Jackson v. Lodge, 36 Cal. 28.

be defaulted and the other go to trial on a plea that is peculiar to himself, a judgment in his favor will not discharge the defaulted. defendant; otherwise, if the matter pleaded be a defense common to both defendants. 48

§ 1418. Entry of. The clerk of a court, in entering a judgment after default, acts in a mere ministerial capacity, and cannot render a judgment granting any relief beyond that warranted. by the facts stated in the complaint.49 A judgment entered by the clerk, upon default, for a sum greater than is demanded in the prayer of the complaint and specified in the summons is not void, but is simply erroneous, and may be enforced until modified on motion or on appeal.50 Judgment by default which grants relief other and different from that prayed for in the complaint and specified in the summons is improper.51 If a default is prematurely entered, defendant may have it set aside, and, having tendered his answer before default is legally entered, is entitled to defend.52

§ 1419. Clerk's duty. The entry of a default in a case authorized by law is a ministerial act, to be performed by the clerk, and the disqualification of the judge of the court to try the cause does not disqualify the clerk for the performance of this duty.53 When the law declares what the judgment shall be, a judgment on default is not the judgment of the clerk.54 A valid judgment by default may be rendered by the court, though no formal default has been entered.55 The clerk derives all his power in entering a default, without an order of the court, from the statute, and when he enters a default it must appear that all the facts existed which the law requires to authorize it.56

§ 1420. Errors, how reviewed. ment by default as well as in a

48 Swanzey v. Parker, 50 Pa. St. 441, 88 Am. Dec. 549.

49 Gray v. Palmer, 28 Cal. 416; Wallace v. Eldredge (No. 1), 27 Cal. 495; Kelly v. Van Austin, 17 Cal. 564; Willson v. Cleaveland, 30 Cal. 192; Leese v. Clark, 28 Cal. 26.

50 Bond v. Pacheco, 30 Cal. 531. 51 Mudge v. Steinhart, 78 Cal. 34, 12 Am. st. Rep. 17, 20 Pac. 147.

There may be error in a judgjudgment rendered upon issue

52 Waymire v. Shipley (Or.), 97 Pac. 807.

53 People v. De Carrillo, 35 Cal. 37 54 Harding v. Cowing, 28 Cal.

212.

55 Herman v. Santee, 103 Cal. 519, 42 Am. St. Rep. 145, 37 Pac. 509.

56 Providence Tool Co. v. Prader, 32 Cal. 634, 91 Am. Dec. 598. See, also, Reinhart v. Lugo, 86 Cal. 395,

joined in the pleadings and tried by a jury; and in the former as well as the latter case the error may be corrected on appeal.57 Judgment by default before the expiration of the full time will be reversed on appeal.58 If the summons be radically defective, it will not support a judgment by default.59 So where the record shows that the defendant has not been legally served with process, 60 A notice in summons that a money judgment would be taken will not support a judgment for fraud.1 Where the complaint shows no legal cause of action, a judgment by default can no more be taken than it can be over a general demurrer.“ 62 A judgment rendered upon a complaint radically defective may be treated as a nullity.63 Where, on the overruling of a demurrer to the complaint, no notice was given to the defendant, and a judgment was entered by default against the defendant, it is proper to set aside such judgment.64

§ 1421. Proof, when required. In all actions in equity, and at law, when not arising upon contract, for the recovery of money or damages only, and the defendant has defaulted, the clerk must enter the default of the defendant, but before the entry of judg ment the court may take proof therefor, or refer the same, or may order damages to be assessed by a jury; and in cases of service. by publication, the court must require proof, and, if the defendant is a non-resident of the state, must require the plaintiff or his agent to be examined on oath as to any payments on account of the demand, and may then render judgment for the amount the plaintiff is entitled to recover.65 A judgment in ejectment awarding damages rendered on a default will not be reversed because it does not appear that the court examined witnesses upon the question of damages.66

§ 1422. Relief granted.-If judgment is rendered in favor of plaintiff by default, the court cannot grant any greater relief

21 Am. St. Rep. 52, 24 Pac. 1089; Graydon v. Thomas, 3 Or. 250; Kelly v. Van Austin, 17 Cal. 564.

57 Stevens v. Ross, 1 Cal. 94. 58 Burt v. Scrantom, 1 Cal. 416. 59 People v. Woodlief, 2 Cal. 242. 60 Joyce v. Joyce, 5 Cal. 449; People v. Pearson, 76 Cal. 400, 18 Pac. 424; Barney v. Vigoureaux, 75 Cal. 376, 17 Pac. 433.

61 Porter v. Herman, 8 Cal. 619. 62 Abbe v. Marr, 14 Cal. 210. 63 Reynolds v. Harris, 9 Cal. 338. 64 Winchester v. Black, 134 Cal. 125, 66 Pac. 197.

65 Cal Code Civ. Proc., § 585, subds. 2, 3; Tuolumne Redemption Co. v. Patterson, 18 Cal. 416; Lick v. Stockdale, 18 Cal. 219.

66 Dimiek v. Campbell, 31 Cal. 238.