Todd

Petitioners seek by mandamus to compel the clerk of Colusa County to enter the default of defendant in the action of Todd v. Kalfsbeek, Executor, number 12451, in the Superior Court in and for Colusa County and to prohibit that court from taking further proceedings pending a final determination of their petition for a writ of mandate.

The record before us shows: On May 16th petitioners as plaintiffs filed a complaint seeking damages arising out of an automobile accident. The allegedly negligent party in the action was Addie Francis Kalfsbeek, who died after the accident and before the action was brought. The sole defendant (and he was so designated in the complaint) is “Asa J. Kalfsbeek, Executor of the Last Will of Addie Kalfsbeek, deceased.” The defendant in his representative capacity (real party in interest herein) was served with summons on May 19, 1966. No responsive pleading was filed within the time allowed by law. (We are told in petitioners’ memorandum of points and authorities that real party in interest received several extensions of time orally but did not appear within the time agreed upon. The accuracy of the claim is not germane to this decision—it will be for the…