Summary
In People v. Ah Woo, 28 Cal. 212, it was said by the appellate court: "So far as it is claimed that the indictment fails to show in what manner Ah You was or could be defrauded by the transaction, it is sufficient to say that all that is matter of evidence.
Summary of this case from People v. ToddOpinion
Appeal from the District Court, Fourth Judicial District, City and County of San Francisco.
The defendants appealed from the judgment.
COUNSEL:
The Clerk has no power under the statute to enter a gold coin judgment. He has no authority to do more than is expressly conferred upon him by statute. (See Wallace v. Eldridge , 27 Cal. 498.)
It requires the judgment of the Court to decide whether the plaintiff was entitled to a gold coin judgment.
There was a fact to be determined which required the interpretation of the contract and its character. This the Clerk could not do.
Section one hundred and fifty of the Practice Act " empowers the Clerk to enter judgment for the amount specified in the summons, including the costs; " but it goes no further than this. It does not constitute the Clerk a Court to determine any question which requires or may require judicial action, and the question whether a contract is payable in gold coin or not, may be, in certain cases, a question of very great doubt and difficulty, and requiring wise judicial discrimination.
Bennett, Cook & Clarke, for Appellants.
E. W. F. Sloan, for Respondent.
The whole proceeding is in strict accordance with the requirements of the statute. Vide Prac. Act, Secs. 26, 150, and 200, as amended in 1863. (Stat. of 1863, p. 687.)
In Wallace v. Eldridge (27 Cal. 498), it did not appear from the facts stated in the complaint that the money mentioned in the contracts sued on was payable in a specified kind of money or currency, hence the judgment as there entered in the District Court was not the judgment of law. But here the complaint does show that the contract is payable in gold coin, and, consequently, the judgment as entered up conforms strictly to the provisions of section two hundred, and is the judgment of law.
JUDGES: Shafter, J.
OPINION
SHAFTER, Judge
This is an action upon a note payable in gold coin of the United States. The defendants were duly served, and on failure to answer, defaults were duly taken, and a judgment for the recovery of one thousand two hundred and twenty dollars in gold coin, with interest thereon, was thereafter entered against them by the Clerk. The question is, whether the Clerk, as such, had power to enter the judgment without judicial direction.
The action was brought for the recovery of " money only" (Prac. Act, Sec. 150)--for a particular kind of money, but still a recovery of nothing but money was sought, and that fully liquidated in amount. The default admitted the facts stated in the complaint. Thereafter, no question could have been raised except by motion to set aside the default, or, perhaps, on motion in arrest. No such motion was made, and every point within the purview of a motion in arrest, is within the purview of this appeal. The plaintiff was entitled to a judgment for gold coin, and the statute pronounced the judgment of the law arising upon the facts stated in the complaint. As was held in Wallace v. Eldridge (27 Cal. 498), " the Clerk adjudged nothing; he was merely the hand that entered the judgment of the law." The relief was sub modo special, but still " the action was for money only; " and the relief provided for in the judgment is the relief dictated, identically, by the law. The judgment is in no just sense the judgment of the Clerk. His head did not conceive it; it was merely written out by his hand.
Judgment affirmed.