Parke v. Wardner

• Decision Date: 14 February 1887
• Parties: PARKE ET AL. v. WARDNER ET AL
• Court: Idaho Supreme Court

13 P. 172

2 Idaho 285

PARKE ET AL. v. WARDNER ET AL

Supreme Court of Idaho

February 14, 1887

DEFECTIVE SUMMONS.-Where a summons is irregular or defective, the remedy, if any, is by application to the trial court, to quash or set aside.

WRONGFUL CONVERSION-DAMAGES-JUDGMENT BY DEFAULT.-In an action for the wrongful sale of personal property, and the wrongful conversion of the proceeds thereof, it is error for the clerk to enter a final judgment, as upon default, but the plaintiff in such case should go into court and prove his damages.

(Syllabus by the court.)

APPEAL from District Court, Shoshone County.

Judgment vacated and set aside, and cause remanded.

Albert Allen and W. W. Woods, for Appellants.

If a summons is defective, the court acquires no jurisdiction either of the persons of defendants served or of the subject matter of the action, and the entry of default by the clerk was without authority. (Atchison etc. R. R. Co. v Nicholls, 8 Colo. 188, 6 P. 512; Smith v Aurich, 6 Colo. 388; People v. Green, 52 Cal. 577; Porter v. Hermann, 8 Cal. 625.) Under the provisions of statutes identical in language with our own, we cite: Bond v. Pacheco, 30 Cal. 530; Providence Tool Co. v. Prader, 32 Cal. 636, 91 Am. Dec. 598; Cram v. Hirschfelder, 17 Cal. 582; Kelly v. Ban Austin, 17 Cal. 564; Graydon v. Thomas, 3 Or. 250; Freeman on Judgments, 2d ed., secs. 129, 532-542, inclusive.

BRODERICK, J. Hays, C. J., and Buck, J., concurring.

OPINION

BRODERICK, J.

This is an action for the recovery of the value of certain goods and chattels which are alleged to have been wrongfully converted and sold. The plaintiffs demanded judgment for $ 900 and costs. Summons was issued and served on the defendants, but there was no appearance or answer. Default and final judgment was entered by the clerk, and from this judgment the defendants appeal, and assign as error: 1. The summons does not set forth the cause of action stated in the complaint in any manner, and the clerk had no jurisdiction to enter default; 2. The judgment entered by the clerk herein was entered without statutory authority and is void; 3. The court never had or acquired jurisdiction.

The first point is not well taken. The summons is irregular, but not void, and for irregularity the remedy, if any, was by application in due time to the court below for an order to quash or set it aside.

The second alleged error is that the judgment entered by the clerk was without statutory authority, and is void. The authority, if any exists, by which the clerk of the district court may, without an order of the court, enter judgment, is found in section 356 of the Code of Civil Procedure, which reads: "Judgment may be had if the defendant fail to answer the complaint, as follows: In an action arising upon contract for the recovery of money or damages only, if no answer has been filed by the clerk of the court within...