In Tripp, et al. v. Dotson, et al., 51 Ida. 200, 4 P.2d 349, the Court affirmed a judgment in favor of the plaintiffs in a suit to enjoin the enforcement of a clerk's default judgment for a pleaded amount of "reasonable attorney's fees" in accord with the terms of a certain promissory note executed by them and held and theretofore placed in suit by defendants. This clerk's judgment was for "the sum of $4757.37, with interest thereon in the sum of $3240 and $10 costs of this action and $450 as attorney's fees making a total of $8457.37".Summary of this case from Kimbel v. Osborn
October 16, 1931.
APPEAL from the District Court of the Eleventh Judicial District, for Cassia County. Hon. Hugh A. Baker, Judge.
Suit to enjoin enforcement of a judgment. Judgment for plaintiffs. Affirmed.
F.B. Dotson, James R. Bothwell and W. Orr Chapman, for Appellants.
When the damages or amount to be recovered is a sum liquidated by the terms of the contract or capable of mere mathematical calculation from the terms of the contract it is within the authority and it is the duty of the clerk of the court to enter judgment under C. S., sec. 6832, subd. 1, as amended by 1921 Sess. Laws, chap. 162. ( Gustin v. Byam, 41 Idaho 538, 240 P. 600; C. S., sec. 6832, as amended 1921 Sess. Laws, chap. 162; Landwehr v. Gillette, 174 Cal. 654, 163 P. 1018; California Code Civ. Proc., sec. 585; Alexander v. McDow, 108 Cal. 25, 41 P. 24.)
A default judgment entered by the clerk on a promissory note for principal, interest and attorney's fees, stating these amounts separately, will not be treated as an absolute nullity. The judgment will be held good as to the principal and interest, and void as to the attorney's fees. ( Clark v. Lunsford, 143 Ga. 513, 85 S.E. 708; Farmers Merchants' Bank v. Alford, 21 Ga. App. 546, 94 S.E. 818.)
S.T. Lowe, for Respondents.
The judgment entered by the clerk in the case of Dotson v. Tripp was void, for a clerk has jurisdiction to enter judgments only in causes of action which come within the provisions of subsection 1 of section 6832 of the Compiled Statutes of the state of Idaho, as amended by the 1921 Session Laws, chapter 162, at page 358.
A clerk has no jurisdiction to enter a judgment in a cause of action that comes within the provisions of subsection 2 of section 6832 of the Compiled Statutes of Idaho, as amended by chapter 162 of the 1921 Session Laws, page 359.
The cause of action as set forth in the complaint of the plaintiff in the case of Dotson v. Tripp was a cause of action which came within the provisions of subsection 2 of section 6832 as amended as aforesaid. ( Gustin v. Byam, 41 Idaho 538, 240 Pac. 600; Landwehr v. Gillette, 174 Cal. 654, 163 P. 1018; Hurd v. Ford, 74 Utah, 46, 276 P. 908 at 911.)
Where the clerk of the court is authorized under some statute to enter judgment on defendant's failure to appear or answer the statutory provisions giving him such authority must be strictly construed and such power can be exercised by him only in cases which clearly come within the terms of the statute. (34 C. J., p. 178, sec. 393; Cosmopolitan Fire Ins. Co. v. Boatwright, 59 Fla. 232, 51 So. 540; Kelly v. Van Austin, 17 Cal. 564.)
Plaintiffs and respondents, Ray Tripp and Alice F. Tripp, his wife, brought this suit against defendants and appellants, C.H. Dotson and F.B. Dotson, her husband, to restrain the latters' enforcement of a certain judgment theretofore secured by appellant, C.H. Dotson, against respondents.
The essential facts are these: Appellant, C.H. Dotson, as owner and holder thereof, instituted an action against respondents to recover $4,757.37 together with interest and $450 as reasonable attorney's fees, according to the terms of a promissory note previously executed and delivered by respondents to the First National Bank of Burley. Default for failure to answer was entered by the clerk, who subsequently on the same day, entered judgment against respondents in "the sum of $4757.37 with interest thereon in the sum of $3240 and $10 costs of this action and $450 as attorney's fees, making a total of $8457.37."
Respondents attack the judgment primarily upon the ground that the clerk having had no authority to enter it, the same is void. In cases of default following personal service, under the provisions of C. S., sec. 6832, as amended by chap. 162 of the 1921 Session Laws, there are two distinct methods of entering judgment. In actions "arising upon contract for the recovery of money or damages only," the clerk has jurisdiction to enter the judgment. In all other actions, his jurisdiction ends with the entry of the default: the plaintiff must thereafter "apply to the court for the relief demanded in the complaint."
It is therefore obvious that, in the prescribed instance, the clerk has jurisdiction to enter the judgment or he has not. If the pleadings call for a judgment including something other than money or liquidated damages, he has no jurisdiction whatever: he is without authority to enter judgment piecemeal, including some integers and excluding others. Such discrimination would require the exercise of something more than a purely ministerial function, all that the statute contemplates. The rule was directly announced in Gustin v. Byam, 41 Idaho 538, 544, 240 P. 600, 603. In that case the court said:
"What was a reasonable attorney fee was a question of fact for judicial determination by the court under subdivision 2 of the statute, and outside the purely ministerial authority conferred upon the clerk by subdivision 1. The judgment entered was in excess of the clerk's authority under the statute, and was therefore void."
To the same effect are Landwehr v. Gillette, 174 Cal. 654, 163 P. 1018; Hodgdon v. Goodspeed, 60 Or. 1, 118 P. 167; Soliri v. Fasso, 56 Mont. 400, 185 P. 322; Hurd v. Ford, 74 Utah, 46, 276 P. 908, 911.
Appellants' earnest argument that only that part of the judgment pertaining to attorney's fees is void and that the remainder is valid, is based upon the proposition that the clerk had jurisdiction to enter judgment for that remainder. But the proposition, manifestly, is untenable, seeing that the statute in the given instance prohibits him from entering any judgment at all.
Judgment affirmed; costs to respondents.
Budge, Givens, Varian and McNaughton, JJ., concur.