Kelly v. Van Austin

Citations

• 17 Cal. 564

Syllabus

<p>Wheke, in an action against defendants jointly and not severally liable, a portion only of them are served with process, the Cleric cannot, on the application of plaintiff, enter judgment upon default against the parties served only. A judgment so entered is void.</p> <p>The proper course in such case is, to enter judgment against all the defendants, but so as to be enforced against the joint property of all and the separate property of those served.</p> <p>Where the action is against defendants severally liable, a portion only being served with process, the Clerk can, on application of plaintiff, enter judgment, upon default, against the parties served, without regard to the other parties named in the complaint.</p> <p>In entering judgments upon default, the Clerk acts in a mere ministerial capacity; exercises no judicial functions; and must conform strictly to the provisions of the statute, or his proceedings will be without any binding force.</p>