31 P.2d 1041 | Cal. | 1934
Lead Opinion
A rehearing was granted herein because we entertained a doubt concerning whether the order hereinafter mentioned dismissing the action was in fact void. For reasons hereinafter stated we have concluded that it is unnecessary to determine that question.
This action, instituted August 2, 1929, was at issue and on for trial on April 29, 1930. It involves a money demand for $1346.08.[1] At the time the case was called for trial the court, acting under the mistaken belief that it had been bereft of jurisdiction thereof by the provisions of the statute of 1929 (Stats. 1929, chap.
In response to appellant's contention the respondent says, among other things, that the order of dismissal had not become effective and final for the reason that no judgment had been entered. We think the respondent's position is well taken. The general rule expressed in section 664 of the Code of Civil Procedure is that no judgment shall become "effectual for any purpose until so entered". When provision is made, as it is, with respect to certain grounds for the dismissal of an action of which this is not one, in section 581 of the Code of Civil Procedure, it constitutes an exception to the general rule and cannot be extended beyond the strict letter of the statute. This thought is confirmed when we bear in mind that a motion to dismiss on the ground of want of jurisdiction of the subject matter is in its legal effect a demurrer to the complaint on that ground. (9 Cal. Jur. 523.) Hence, to dispose of the action a judgment is necessary. We are not without precedent to support this conclusion. In McCallum v. Still,
The conclusion to which we have come renders discussion of other points unnecessary.
The order is affirmed.
Shenk, J., Langdon, J., Curtis, J., Seawell, J., and Waste, C.J., concurred.
Concurrence Opinion
I concur in the result announced, but I think the reasoning employed may lead to confusion respecting the rule as to when a judgment of dismissal is required and when a minute order will suffice.
The judgment is so palpably void on the ground that as a matter of law the court could not divest itself of jurisdiction by the order in question, that I think it should be so declared. Declarations respecting rules of law should, where possible, be clear and positive. Otherwise complications are bred and the application of law made more difficult, if not more doubtful. Here no proof is required and no finding of fact outside the face of the record is necessary. As a plain mandate of the law the court had jurisdiction and could not, by a mistaken order, divest itself thereof.