Utah Ass'n of Credit Men v. Bowman

• Decision Date: 13 January 1911
• Docket Number: 2174
• Court: Utah Supreme Court
• Parties: UTAH ASSOCIATION OF CREDIT MEN v. BOWMAN, Judge, et al

113 P. 63

38 Utah 326

UTAH ASSOCIATION OF CREDIT MEN v. BOWMAN, Judge, et al

No. 2174

Supreme Court of Utah

January 13, 1911

Original application for writ of mandamus, by the Utah Association of Credit Men against J. M. Bowman, Judge of the Civil Division of the City Court of Salt Lake City, and against B. S. Rives, ex officio clerk of such court, to compel entry of a default judgment by the clerk under Complied Laws 1907, section 3179, made applicable to city courts by Laws 1901, chapter 109, section 28 (Comp. Laws 1907, sec. 686x29).

GRANTED.

Stephens Smith & Porter for plaintiff.

J. Dininny and J. M. Bowman for defendants.

FRICK, J. STRAUP, J., concurs. McCARTY, J., dissenting.

OPINION

FRICK, J.

This is an original application to this court for a writ of mandate. The application is in the form of an affidavit in which 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. Rives 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 goods 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 686x29].) 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 Rev- 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 Kelly v. Van Austin, 17 Cal. 564, which was decided in April, 1861. We also find that Mr. Justice Emerson 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. 315, 322, 23 S.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 obedience 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 cases 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 P. 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, 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 within 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...