CHAPTER XXIX. OF JUDGMENT BY DEFAULT. In an action arising upon contract for the recovery of money or damages only, if no answer 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, the clerk of the court, upon the application of the plaintiff, in case of a personal service of the summons, must enter the default of the defendant, and immediately thereafter enter judgment for the amount spe'cified in the summons, including the costs against the defendant, or against one or more of several defendants, who have been personally served with the summons in an action against two or more defendants, who are jointly or severally liable on the contract.1 The clerk in entering such default and judgment exercises no judicial function, but acts merely in a ministerial capacity, and unless he confines himself strictly within the statute, his acts can have no binding force.2 In other actions, if no answer 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, the clerk must, in case of personal service of the summons, enter the default of the defendant; and thereafter the plaintiff may apply, at the first, or any subsequent term of the court, for the relief demanded in the complaint. If the taking of an account, or the proof of any fact is necessary to enable the court to give judgment or to carry the judgment into effect, the court may take the account, or hear the proof; or may in its discretion order a reference for that purpose. And where the action is for the recovery of dam 1. Code of Civil Procedure, Sec. 585. 2. Wilson v. Cleveland, 30 Cal. 198; Glidden v. Packard, 28 Cal. 650. 3. Code of Civil Procedure, Sec. 585, Sub. 2. ages in whole or in part, the court may order the damages to be assessed by a jury, or if, to determine the amount of the damages, the examination of a long account be involved, may order a reference for that purpose.3 In actions where the service of the summons was by publication, the plaintiff upon the expiration of the time for answering, may, upon proof of the publication and that no answer has been filed, apply for judgment; and the court must, thereupon, require proof to be made of the demand mentioned in the complaint; and if the defendant be not a resident of the state, must require the plaintiff or his agent to be examined upon oath, respecting any payments that have been made to the plaintiff, or to anyone for his use, on account of such demand, and may render judgment for the amount which he is entitled to recover.* A judgment on default for damages is erroneous, and will be reversed on an appeal, if no amount of damages, or a prayer for damages, be contained in the complaint.5 4. Code of Civil Procedure, Sec. 585, Sub. 3. CHAPTER XXX. OF TRIALS OF ISSUES OF LAW AND OF FACT BY THE COURT OR BY A REFEREE. When an answer is filed in an action raising issues of questions of fact, such issues of fact must be tried and determined by a referee appointed by the court for that purpose, or by the court, or by a jury. Issues of law must be tried by the court, unless it be referred by the court, by consent of the parties to a referee for that purpose. A reference may be ordered upon the agreement of the parties, filed with the clerk, or entered in the minutes of the court; 1. To try any or all of the issues in the action or proceeding, whether of fact or of law, and to report a finding, and judgment thereon. 2. To ascertain a fact necessary to enable the court to determine an action or proceeding. When parties do not consent to a reference, the court may, upon the application of either, or of its own motion, direct a reference in the following cases: I. When the trial of an issue of fact requires the examination of a long account on either side, in which case the referee may be directed to hear and decide the whole issue, or report upon any specific question of fact involved therein; 2. When the taking of an account is necessary for the information of the court before judgment, or for carrying a judgment or order into effect. 3. When a question of fact, other than upon the pleadings, arises upon motion, or otherwise, in any stage of the action. 4. When it is necessary for the information of the court in a special proceeding. The reference may be ordered to any person or persons, not exceeding three, agreed upon by the parties, and if they do not so agree, then by the court without such agreement; the referees must be residents of the county in which the action or proceeding is triable, and against whom there is no legal objection, or the reference may be made to the court commissioner of the county in which the cause is pending. Either of the parties to the action or proceeding may object to the appointment of any person as referee on the ground of relationship by consanguinity or affinity within the third degreeto either party, or to the judge of the court in which the appointment is made, and on one or more of the grounds, which are grounds or a ground of challenge to a trial juror; and affidavits may be read and witnesses examined, as to such objections to a referee and then the court must rule on the objection. The referee or referees or commissioner must report in writing to the court within twenty days after the testimony is closed; and the facts found and conclusions of law must be separately stated therein; the finding of the referee or commissioner upon the whole issue must stand as the finding of the court, and upon filing the findings with the clerk of the court, judgment may be entered thereupon in the same manner as if the action had been tried by the court. Such findings may be excepted to and reviewed in like manner as if made by the court. When the referee is to report the facts, the findings reported have the effect of a special verdict. The court cannot, without the consent of parties in a common law action, refer the action to a referee, to state an account between the parties and report findings and a judgment in the action, since in such actions the parties are entitled to a trial by jury if they desire it. But if no objection be taken to such order of reference, the order is not a ground for a reversal of the judgment in the case, on an appeal.2 A referee need not be sworn except in cases in which by statute he is required to be sworn.3 1. Grim v. Norris, 19 Cal. 142. 2. Hendy Machine W. v. Pac. C. C. Co., 99 Cal. 423. Under a reference to try the issue and report a judgment, a referee can exercise all the powers of a judge in relation to the trial of the cause referred to him.4 But since a judge before entering on the discharge of his duties as judge, is required to take an oath of office, it would be proper that a referee be sworn before entering upon the discharge of his duties as such referee. The referee must be guided by the directions in the order of the court appointing him, and cannot act except within the directions contained in such order.5 The time within which a referee must file his report is simply directory and a finding of fact by a referee will not be set aside. where the evidence is conflicting. If a trial of issues of fact be not referred to a referee, or to a commissioner of the court, it may, in all actions in equity, and in common law actions, in which a trial by jury is waived, be by the court. Trial by jury in actions may be waived: 2. By written consent in person, or by attorney, filed with the clerk. 3. By failure to comply with the reasonable rules of a court in respect to the payment of jury fees. 4. By oral consent in open court entered in the minutes. Upon the trial of questions of fact by the court, its decision must be given in writing and filed with the clerk within thirty days after the cause is submitted for decision; and in giving the decision, the facts found, and the conclusions of law must be separately stated; and judgment on the decision must be entered accordingly. Findings of fact may be waived by the several parties: 1. By failing to appear at the trial; 2. By consent in writing filed with the clerk; 3. By oral consent in open court entered in the minutes of the court. On a judgment for the plaintiff upon an issue of law, he may proceed in the manner prescribed by the first two sub 4. Plant v. Flemming, 20 Cal. 93. |
