, 1877-09-08

2d. y summons issued.
Sd. Due service must have been made.
4th. The time for answering must
have expired
9TH And the defendant must have
neglected to answer.
Now, where the statute provides the
manner in which all these things must
he done; it has not and cannot declare
| whether the case comes within the pur-
view of the law. Some power must look
at the papers ON the files and uscel tain
and determine whether II complaint has
been filed and summons issued; whcth'
made. MNnifestly, before default can
be entered, these questions must be
decided, and such decision must be made
pom full consideration of the law and
facts. That the clerk can lawfully de
eide such questions is not contendcd.
The judicial power is vested in the
Court, and it is the province Of the
Court or Judge to declare the law. My
Brother Greene, OF the Second District,
has aptly said, touching this question /:
ut is fallacious 10 say that the judy
ment On default is the Judgment OF the
law, and that therefore the clerk has the
right to ministerially to enter it with.
out the direction nf the Judge. All
judgments, unless by confession, are
judgments of the law: and if the clerk,
because it is such, could, without the Or
der of the Judge, enter one, he can enter
all. Strictly speaking, M lawful judg-
ment is the judgment Of the Judges it
is the judgment Of the law, and is sinip.
ly announced by the Judge. Behind the
Judge stands the law, whose only con-
stituted spokesman he is, 1t is his trust
and exclusive office tn utter the law and
say in every case, what the Judgment of
the law is. "-[Queirsch VS.. Hirsch, I'd
Dist, March Term, 1879,
The clerks powers are wholly minis
terial, and by the terms Of his oath he is
required to truly and faithfully enter and
record the orders DEGREES and judgments
and proceedings OF the Court Revised
Statutes, sec. 704
Judgments arc always entered by the
clerk under the authority OF the Court.
i Hecliers VS.. Fowler, ? Wall 1923.
True the clerk may and Goes often
issue mesue process, but it is only pre-.
liminNry to final proceedings, and is
subject to correction by the Court, But
Judgment which is the final determi-
nation of the rights of the parties to the
action caE only be directed by judicial
power, and the arugment that the clerk
only records the judgment Of the law, in
making such entries, is wholly unusual
Tor no authority is vested except with
the judiciary to declare whether the case
as made comes within the provisions OF
the statute.
But, further; il the party be in de
fault, and it is so adjudged by competent
authority before a Judgment can be en-,
tered, it must be apparent that there is
complaint on file which sets out facts
which constitute cause of action; and
unless there is such a complaint, no judg.
ment can be entered therein, for this
complaint is the basis Of all other pro-
ceedings. That tho determination of
this question requires the exercise OF
judicial power will not be doubted.
am Of the opinion that so much OF
section $50 of the code as authorizes the
clerk, without the authority and order of
the Court or Judge, to enter default
and judgment is void.
The entry here made will be vacated
and set aside.
]. II, LEWIS, Chief Justice.
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