To these defenses appellant replied by denying some and by avoiding others. When the issues had thus been framed, all the parties herein moved the court to transfer "the aboveentitled cause from the equity division of this court to the law division thereof." Subsequently, after the attorneys for all the parties, including appellant, had argued the matter, the court made an order in which it appears that "by consent of the respective attorneys it is ordered that the within case be, and it is hereby, transferred to the law division of this court." The case came on for trial in that court, and the court in its charge to the jury submitted to them all the issues that were presented by appellant's answer and counterclaim, including the allegations contained in his crosscomplaint, the issues presented by the Naylors in their answer to the counterclaim, and by the reply of appellant thereto. The issues alone, as submitted to the jury, cover twelve sheets of typewritten legal cap. In submitting the issues, nothing was omitted except the question of whether the mortgage should be canceled on the one hand, or whether it should be foreclosed on the other. These were, however, not issues of fact, but were to be determined alone from what the jury might find to be the facts. The principal defenses in the answer of the Naylors other than W. S. Naylor were that the interest in the sheep leased by the contract in question had been divided, the Naylors other than W. S. Naylor having taken one-half and W. S. Naylor and W. G. Clark the other half, that the mortgage was thereafter held only for the first half, that there had been a full settlement with respect to the first half, and that the parties, including the mortgagors, were therefore released and discharged from all obligations with respect thereto, and that by reason thereof the mortgage given by George and Hulda Naylor was discharged and should be released of record. Appellant joined issue upon these defenses in his reply, and the whole matter was submitted to the jury as aforesaid. The jury were asked to determine whether the Naylors other than W. S. Naylor and W. G. Clark were liable in damages to appellant and in what amount, if any. The jury returned a general verdict in which they found that the Naylors other than W. S. Naylor and W. G. Clark were not indebted to appellant, but that W. S. Naylor and W. G. Clark were indebted to him in the sum of nine thousand dollars. After this verdict was returned as stated in the opinion, appellant filed a motion for a new trial so far as the verdict was in favor of the Naylors. The motion was denied. The legal status of the case thus was simply this: All the issues to be tried in the case were presented by appellant's counterclaim and cross-complaint, the answer containing the affirmative defenses to the counterclaim and cross-complaint filed by the Naylors and Clark and appellant's reply to these answers. Te question whether the mortgage given by George and Hulda Naylor should be canceled or not therefore depended entirely upon whether the defenses set up by them and the other Naylors interested with them were established or not. If they were established, nothing remained for any court to do except to enter a decree canceling the mortgage, and, if not established, then to order a decree of foreclosure for the amount found due the appellant for the established breaches of the contract. The jury must have found that there was a segregation of the interests of the Naylors other than W. S. Naylor and W. G. Clark, and that the former had fully settled all claims against them on the contract, while W. S. Naylor and W. G. Clark alone were indebted to appellant on the contract for said sum of nine thousand dollars. The question of whether the interests under the contract were divided between the Naylors other than W. S. Naylor on the one hand and W. S. Naylor and W. G. Clark on the other was directly presented by the pleadings and issues submitted to the jury, and hence was included in their general verdict. If there was such a division, and the jury must have found that there was, and they further must have found that nothing was owing upon the half interest for which the mortgage was to stand as security after the division, and if this be true, then there was nothing for which the mortgage could be foreclosed, and as we said in the opinion, the court could do nothing else except what it did, 3 namely, enter a decree canceling the mortgage and dismiss the appellant's counterclaim so far as the same related to the Naylors other than W. S. Naylor and W. G. Clark and to the foreclosure of the mortgage, for the reason that the jury had disposed of the questions of fact presented by the counterclaim and answers thereto, and there were no other questions of fact to be passed on. Counsel are therefore in error in saying that there are any questions of either law or fact left undisposed of. Nor can they complain because the court did not in terms review all the facts that were presented to the jury, and declined to make his own findings thereon. Courts certainly have the right to treat questions as the parties to the action have treated them and to deal with them accordingly. If counsel's contentions are sound that they did not treat the submission of the questions of fact to the jury and their general verdict thereon as final, why did they make a motion for a new trial? If the verdict was to be advisory only, no motion for a new trial was necessary or even proper. All that counsel need have done was to ask the court to make findings of its own either in harmony with the findings of the jury or contrary thereto. While, as we have said in the principal opinion, the proceedings were somewhat irregular, yet neither party is in a position to complain of the irregularities. The petition should be, and it accordingly is, denied. STRAUP, C. J., and McCARTY, J., concur. UTAH ASSOCIATION OF CREDIT MEN v. No. 2174. Decided January 13, 1911 (113 Pac. 63). 1. MANDAMUS-ACTION AGAINST OFFICER-DISCRETION. Though an official act may be quasi judicial or discretionary, if the discretion is qualified, and the refusal to perform the act is merely capricious, arbitrary, or wrongful, the officer may be coerced to perform the act by mandamus. (Page 331.) 2. CONSTITUTIONAL LAW-DEFAULT JUDGMENT-ENTRY BY CLERKJUDICIAL POWERS. Comp. Laws 1907, sec. 3179, providing that in an action on contract for the recovery of money or damages only, if no answer, demurrer, or motion has been filed with the clerk of the court within the time specified in the summons or within such further time as may have been granted, and the complaint and proofs of service of summons shall have been filed, the clerk on application of the plaintiff must enter the defendant's default and immediately thereafter enter judgment for the amount specified in the complaint, including costs against the defendant, etc., is not unconstitutional as imposing judicial functions on a ministerial officer. (Page 332.) 3. MANDAMUS-DUTY TO ACT-DISCRETION. Where the law imposes a duty on an officer to act after determining that the condition or facts on which duty to act depends exists, and he finds or concedes that the condition is present or that the fact does exist, then he acts in obedience to the law imposing the duty, and his acts are ministerial and not discretionary or judicial.1 (Page 332.) 4. JUDGMENT "DEFAULT"-ADMISSIONS. A default on which a judg ment may be rendered is an admission of every traversable allegation of the declaration or complaint necessary to plaintiff's cause of action, also, that defendant is the person named in the writ and intended to be served, and that the court has acquired jurisdiction of his person, and has jurisdiction of the cause of action, and also constitutes an admission of the due execution of the instrument sued on. (Page 335.) 5. MANDAMUS-DUTIES OF COURT CLERK-FAILURE TO PERFORM-OFFENSES. Where a clerk of the city court refused to enter a default judgment as it was his legal duty to do, pursuant to 1 State v. Morse, 31 Utah, 213, 87 Pac. 705, 7 L. R. A. (N. S.) the requirements of Comp. Laws 1907, sec. 3179, made applicable to city courts by Laws, Utah 1901, c. 109, sec. 28 (Comp. Laws 1907, sec. 686x29), it was no answer to a mandamus proceeding to compel him to enter such judgment that the judge of the court had directed him to enter no such judgment. (Page 337.) 6. JUDGES-DUTIES-EXERCISE MANNER. A judge has no duty to perform with reference to a case filed in the court until a party or some one interested therein, invokes his judgment in some legal manner. (Page 337.) 7. CLERKS OF COURTS-DUTIES-PERFORMANCE-DIRECTION BY JUDGE. Where the clerk of a court refuses to perform a duty required by law, the judge of the court may require the clerk to perform the duty and may enforce his order by contempt proceedings. (Page 339.) 8. COURTS-SUPREME COURT-JURISDICTION-CONTROL OVER LOWER COURT PROCEEDINGS. Where a clerk of a city court refused, as ordered by the judge of the court, to perform a legal duty to enter judgment by default and the judge when applied to refused to compel the clerk to enter the judgment, the Supreme Court, in the exercise of its power to control the proceedings of lower courts, could compel the clerk to act by mandamus in the same manner as the judge of the lower court ought to have done. (Page 339.) MCCARTY, J., dissenting. Original application for writ of mandamus, by the Utah Association of Credit Men against J. M. Bowman, Judge of the Civil Division of the City Court of Salt Lake City, and against B. S. Rives, ex officio clerk of such court, to compel entry of a default judgment by the clerk under Complied Laws 1907, section 3179, made applicable to city courts by Laws 1901, chapter 109, section 28 (Comp. Laws, 1907, sec. 686x29). GRANTED. Stephens, Smith & Porter for plaintiff. J. Dininny and J. M. Bowman for defendants. FRICK, J. This is an original application to this court for a writ of mandate. The application is in the form of an affidavit. |