Davidson

This is an application for a writ of mandate to compel the clerk of San Joaquin County to enter the default of one A. T. Karry for his failure to answer in a certain action brought against him by said Mattie E. Davidson in the superior court of said county.

The petition herein sets out the complaint in said action, alleges that it was filed, that summons was issued and served upon said Karry, that he appeared and filed a demurrer, which is exhibited. “That thereafter on the 18th day of August, 1913, there was entered into and filed in said action a stipulation in the words and figures as follows, to wit: (Title of court and cause.)

That on December 1, 1913, the plaintiff filed with the clerk her demand for the entry of Karry’s default and tendered the legal fee for the same, that the demand was refused, that thereafter upon notice given, a motion was made in the said superior court for judgment against said Karry on the ground that he had suffered default, but that the motion was denied without prejudice, and that, on December 16, defendant Karry filed a demurrer in said action, which is set out.

The claim is that it was the clear, ministerial duty of the clerk to enter the…