120 Cal. 33 | Cal. | 1898
Action for divorce, in which the corporation is joined as a party defendant to protect plaintiff’s rights in certain property alleged to have been conveyed to said corporation by the defendant, Daniel H. Foley, in fraud of and to defeat plaintiff’s rights therein.
The corporation made default, but subsequently moved that the default be vacated and it be allowed to answer, which motion was denied.
The defendant Foley interposed a demurrer to the complaint; but the court, on motion of plaintiff, struck out his demurrer and gave judgment against him as by default for his failure to pay certain alimony ordered by the court, and for neglect and refusal to subscribe his deposition taken in the action.
Both defendants interposed motions for a new trial, but their motions were denied. Six appeals in all were taken by the defendants; an appeal by the corporation from the order denying its motion to set aside its default; an appeal by defendant Foley from the order striking out his demurrer and ordering judgment to be entered against him: a separate appeal by each of the defendants from the order denying his motion for a new trial; and, lastly, a separate appeal by each of the defendants from the judgment. The two first-mentioned appeals were heretofore dismissed by this court upon the ground that the orders from which they were attempted to be prosecuted were not appealable.
1. As to the appeals from the orders denying the motions of defendants for a new trial, they cannot be entertained. A motion for a new trial is not an appropriate proceeding to review the action of the court in giving judgment in a case rvhere there has been no trial upon issues of fact. (Hayne on New Trial and Appeal, sec. 443; Savings etc. Soc. v. Meeks, 66 Cal. 371; Gregory v. Gregory, 102 Cal. 50; In re Heldt, 98 Cal. 553.)
In this case there was no such trial, the judgment being by default against both defendants. That is, while defendant Foley
While appellants concede this to he the law in actions other than for divorce, they contend that in the latter class of cases there is always of necessity a trial of issues of fact; that the law raises such issues whether the defendant answers or not. But this is a misapprehension of the effect of the statute. The code does provide that no divorce can be granted upon the mere default of the defendant, but that the court shall in all cases “require proof of the facts alleged” before granting the relief. (Civ. Code, sec. 130.) But the effect of that provision is not to raise “issues of fact,” nor to constitute the taking of proof submitted by the plaintiff in cases whore the defendant has not answered a “trial,” as those terms are used in the provisions relating to new trials. Such an issue arises only where a material averment of fact is made on the one side and is controverted upon the other (Code Civ. Proc., secs. 588, 590); and the "re-examination” provided for in section 656 is where there has been a trial of such an issue.
The provision of the Civil Code merely declares the policy of the law to he that in divorce cases, whether the defendant suffer default or not, the relief shall not he granted until the facts upon which it is sought are established by proof. In such an instance, however, as in any other where the defendant makes default and suffers judgment upon a mere ex parte showing, his remedy in seeking relief from the judgment is under section 473 of the Code of'Civil Procedure, and not by motion for a new trial. (Hayne on Hew Trial and Appeal, sec. 9, and cases above cited.)
The attempted proceedings for a new trial were, therefore, wholly nugatory and cannot be reviewed.
2. Upon their appeals from the judgment a number of questions are raised by appellants.
But an examination of the bill of exceptions does not disclose error in the action of the trial court in refusing to set aside the default. The only ground upon which the corporation based its motion was that it had not been served with summons in the action, and upon this question the evidence was not only square? ly conflicting, but in our judgment preponderated against its contention. In such a case we cannot disturb the order, there being nothing to indicate an abuse of discretion in denying the relief.
It is first objected by this appellant that the action of -the court was unauthorized because the proceeding being one to bring him into contempt, no valid service of the order to show cause was made upon him, in that it was not served personally. The affidavits upon which the order to show cause was based disclose that Foley was concealing himself to avoid a compliance with the orders of the court and the service of its process, and' the court upon that showing directed that the order be served upon his attorneys of record, which was done. This method of procedure was under the circumstances authorized and constituted a valid service. (Golden Gate etc. Co. v. Superior Court, 65 Cal. 187; Eureka Lake Co. v. Superior Court, 66 Cal. 311.) Moreover, it appears that Foley appeared by his counsel in answer to the order to show cause, and submitted evidence upon the merits of the application, and resisted the same without objection to the want of personal service. This of itself was. sufficient to give the court jurisdiction over him. (Keisker v. Ayres, 46 Cal. 82.) It was not necessary that he be personally present; nor could he have been required to be so. (Ex parte Gordon, 92 Cal. 478; 27 Am. St. Rep. 154.)
It is mainly objected, however, that the court had no authority to strike out his demurrer, refuse to permit him to answer, and render judgment against him pro eonfesso for his faihire to obey its order for alimony; that a disobedience of that ■ order constituted a contempt for which the only punishment it was competent to impose under the code was fine and imprisonment; and, further, that in an action for divorce the court could riot thus deprive defendant of his right to make a defense. ■ Both of these propositions find support in the previous decisions..of this court. (Galland v. Galland, 44 Cal. 475; 13 Am. Rep. 16; Johnson v. Superior Court, 63 Cal. 578.)
And, speaking of the oft-repeated assertion that from the earliest times the court of chancery in England has possessed and exercised such power, it is said: “But this contention is without solid foundation to rest upon, and is based upon a too strict and literal rendering of general language to be found in isolated passages contained in the works of writers on ancient lawr and practice, and on loose statements as to the practice of the court of chancery to be found in a fewr decisions of English courts. Certain it is that in all the reported decisions of the chancery courts of England no single case can be found rvhere a court of chancery ever ordered an answrer to be stricken from the files and denied to a party defendant all right of hearing because of a supposed contempt. And the American adjudications, whilst there are two cases, one in Eew York and the other in Arkansas, asserting the existence of such power, an analysis of these cases and the authorities upon wdiieh they rely will conclusively show the erroneous character of the conclusions reached.”
That case is controlling as authority here, not alone because of the high character of the court rendering the opinion, but because the principles there announced are conclusive upon us
But it is urged that, aside from the question of the inherent power of the court, section 1991 of the Code of Civil Procedure expressly authorized the action of the court because of the defendant’s refusal to subscribe his deposition. In response to this, appellant contends that the evidence did not warrant, the court in holding that he was guilty of such refusal. As to this fact, however, we need not inquire, for it is obvious that, if that section were intended to authorize the action here taken, it is to that extent obnoxious to the principles stated in Hovey v. Elliott, supra. Where a given act amounts to the invasion of a constitutional right, we can perceive no -well-founded distinction in principle whether such invasion come from an attempted legislative sanction, or from the naked, unauthorized act of the court. The one is as ineffectual as the other. Moreover, under the doctrine of Johnson v. Superior Court, supra, the remedy provided by the last clause of that section is not applicable to an action for divorce.
It is further said that striking out defendant’s demurrer was in effect merely overruling it; and, as it is contended that the demurrer was properly overruled, it is urged that the court was authorized to order judgment without giving defendant leave to answer. But if this were the legal effect of the action taken, which we are not prepared to concede, we should have no hesitation in holding that a refusal of the right to answer under such circumstances, especially in an action for divorce, would amount to an abuse of discretion for which the judgment would be reversed. (Johnson v. Superior Court, supra.)
Since these considerations require the judgment to be reversed as to this appellant, it is unnecessary to consider the further objections thereto made by him.
3. The only other point requiring notice is that of the defendant corporation that the relief granted against it by the judgment is in excess of that demanded in the complaint, and
For these reasons the judgment is reversed and the cause remanded for further proceedings not inconsistent with this opinion.
Harrison, J., and Garoutte, J., concurred.
Hearing in Bank denied.