265 P. 246 | Cal. | 1928
Lead Opinion
This is an appeal from a judgment of the superior court of the county of Sacramento denying appellant's application for a writ of mandate.
The events leading to the institution of this proceeding may be chronologically recorded as follows: Harry J. Gray, the appellant herein, commenced an action in the year 1921. against one P.L. Yarbrough to recover certain secret profits alleged to have been fraudulently earned by the latter while acting as Gray's agent in the consummation of a real estate transaction. After trial, judgment was entered for the plaintiff therein. An appeal was seasonably prosecuted by Yarbrough, which terminated in a reversal of the judgment with directions to the lower court that the plaintiff, Gray, be permitted within a reasonable time to so amend his complaint as to show that the cause of action therein alleged had not become barred by the running of the three-year period prescribed in section 338 of the Code of Civil Procedure. (Gray v. Yarbrough,
In opposition to the issuance of such a writ the respondent vigorously contends that the judgment in Gray v. Yarbrough, under which the appellant seeks to have the judgment inYarbrough v. Herbert assigned to him, is void on its face for the reason that Yarbrough's default in the former action was improperly entered and judgment taken against him without authority in law. Respondent points out in support thereof that the amended pleading filed in Gray v. Yarbrough left the material allegations of the original complaint substantially unchanged and added thereto only such allegations as were necessary to show that the cause of action for fraud therein alleged had not become barred by the running of the statutory period of limitation. In view of this asserted immaterial amendment of the complaint the respondent urges that "where an answer is on file to a complaint a default cannot be taken for failure to answer a later amended complaint where the defenses *310 pleaded in the original answer put in issue the material allegations of the amended complaint." In other words, respondent urges that Yarbrough's answer to the original complaint precluded the entry of a default for failure to answer the amended complaint.
Some of the earlier authorities would seem to indicate that an amended complaint supersedes the original for all purposes. The case of Redington v. Cornwell,
[1] It has been generally held that where a plaintiff amends his declaration or complaint so as to change the cause *311
of action, or add a new one, it constitutes an abandonment of the original issues, and judgment by default may be taken against the defendant if he fails to file a new or amended answer or plea within the time allowed therefor, notwithstanding the original answer or plea is still on file. (34 C.J. 164, sec. 375d, and authorities there cited.) This rule is without application, however, where the amendment is merely as to formal or immaterial matters, and does not change the cause of action; nor does it apply where the original plea or answer set forth a sufficient defense to the declaration or complaint as amended. (Lincoln Co.Bank v. Fetterman,
In the case of Lincoln Co. Bank v. Fetterman, supra, it is declared that "Section 432 of our Code of Civil Procedure in declaring that the amendments, or the complaint as amended, must be answered by the defendant within ten days, or such other time as the court may direct, is but a direction to compel the joining of issues within a reasonable time so as to expedite the trial of actions. It still rests within the sound discretion of the court as to whether any time shall be allowed to the defendant to answer, and whether or not time will be allowed will depend upon the nature and character of the amendment to the complaint. It states the rule too broadly, therefore, to say that because a complaint is amended, even in most trivial and unimportant particulars, the defendant has the absolute right to time and to the postponement of the case to plead to this amendment. . . . In the present case, all that the plaintiff asked leave to do and did was to make more specific an allegation of nonpayment of a promissory note, which allegation was certainly sufficient to pass a general demurrer. It could not have taken defendant by surprise to have had this allegation of nonpayment made more specific. It could not *312 have introduced any new element in the case which he was not prepared to meet. . . . This being so, then the amendment raised no new issue and presented no new proposition which the defendant was called upon to meet and the court was absolutely justified in refusing leave to the defendant to amend. . . . The original answer was not only not eliminated by virtue of the amendment to the complaint, but was the answer joining the issues upon which the action was tried. It was an essential part of the judgment roll. . . ."
The case of Fox v. Hale Norcross etc. Co., supra, indicates that upon the second trial of a cause the answer to the original complaint may serve as a plea to an amended complaint filed during the progress of the first trial to conform to the proofs there adduced. It is stated in the opinion that "The answer already in was as appropriate to the complaint as amended as before the amendment, for it was in all material respects the same identical pleading."
Ermentraut v. American Fire Ins. Co., supra, is very persuasive upon the point under consideration. The opinion therein states that "The judgment was wholly unauthorized, and the court was clearly right in setting it aside. Counsel for the plaintiffs proceeded upon the erroneous idea that, inasmuch as an amended pleading supersedes the original, therefore all subsequent pleadings are also superseded and cease to be a part of the record, and hence an answer to the original cannot stand as an answer to the amended pleading. This was not the rule either at common law or in equity, and the rule has not been changed by the code. The rule in common-law actions is correctly stated in Tidd's Practice, 708, and notes, as follows: `After an amendment of a declaration, the defendant is at liberty to pleadde novo; that is, he may do so if he has occasion or thinks proper, but he is not obliged to vary his first defense.' Also: `Anciently, it seems, the defendant did not plead de novo after an amendment, but he is now at liberty to do so when the amendment is of such a nature as to occasion any alteration in the plea, but not otherwise.' The chancery practice was the same. If a bill was amended after answer, the defendant was not required to put in a new or further answer, unless the amendment consisted of the allegation of new facts, which would vary the rights of the parties; *313
and even in that case he was not required to file an entirely new answer, repeating the allegations of his original one, but merely a supplemental answer to the new facts alleged in the amended bill. . . . In short, when a complaint is amended after answer, the defendant is not bound to answer de novo. He may do so if he chooses; but, if he does not elect to do so, his original answer stands as his answer to the amended complaint; and in such case he will not be in default except as to the additional facts set up in the amended complaint, and not put in issue by the answer. . . ." [2] In the light of these authorities we are of the firm opinion that it was error to disregard Yarbrough's answer to the original complaint and his default was, therefore, improperly taken and entered in the case of Gray v.Yarbrough.
[3] Notwithstanding that it was error for the trial court to enter the default of Yarbrough in the original case, the judgment thereafter entered is not subject to collateral attack in thismandamus proceeding. It is not void on its face. Whether or not the defendant Yarbrough should have been permitted to answer was a question of law necessarily involved in the original case, and there can be no doubt that it was within the jurisdiction of the superior court to decide that question. The judgment rendered there is in full force and effect, for it was not appealed and has not been vacated or set aside. The decision of the court was final and cannot be reviewed on appeal, for there is now no appeal. Nor will a review be permitted upon this application for a writ of mandate. Assuming that mandamus is a remedy open to the petitioner, there is nothing in the law relating to such a proceeding to indicate that the respondent may avail himself of the position, which he now takes, to review the decision of the court in the original action upon a question of law which does not involve the jurisdiction or powers of the court to act in the matter. If the court had determined in the original action that the answer of the defendant there was sufficient, or had refused to enter his default for not answering, the respondent would not now be contending that the court had no jurisdiction to so decide. It is fundamental that it had jurisdiction to decide the matter either way. Jurisdiction in cases of this *314
character implies the power of the court to decide a question wrongly as well as rightly. It was not necessary for us to determine in this proceeding whether the ruling of the court in the original action was correct or not. This being a collateral attack upon the judgment, we need have gone no further than to determine whether it was void or not. (Howe v. Southrey,
[4] The judgment in Gray v. Yarbrough was voidable merely and not void, and is but an instance of an erroneous exercise of jurisdiction and not of an entire lack, or even loss, of jurisdiction. Jurisdiction is but the power to hear and determine, and it does not depend upon the correctness of the decision made. (Bennett v. Wilson,
Although the court in the original action committed error which would have called for reversal on appeal, it had acquired jurisdiction to act in the premises long before its commission, and its judgment having become final without appeal or other direct attack, it is now conclusive against this collateral attack, whether the matter was rightly or wrongly decided as to the matters presented or which should have been presented on the hearing. (Creditors' Adjustment Co. v. Newman,
It cannot be denied that, in those cases in which judgments have been rendered without any or insufficient service, or where the party not only has had no opportunity to answer, but is so ignorant of any proceeding against him as not to have been able to avail himself of the remedies which the law gives him until he has lost them all, the judgment is absolutely void. Such a judgment may be attacked at any time, directly or collaterally. (People v. Harrison,
[5] The contention is also advanced here that the action of the trial court in entering the judgment amounted to a denial of "due process." The contention is untenable. Due process of law is law in its regular administration through courts of justice and means "a course of legal procedure according to those rules and principles which have been established in our system of jurisprudence for the enforcement and protection of private rights." (Pennoyer v. Neff,
A judgment obtained against a defendant in an action in which there has been no service of summons or voluntary appearance is void by reason of the absence of jurisdiction in the court to render it; but that is so only where original jurisdiction is exercised, and does not relate to a decision on a collateral question in a case where the parties are before the court. (Walden v. Craig's Heirs, 39 U.S. (14 Pet.) 145, 154 [10 L.Ed. 393, see, also, Rose's U.S. Notes]; Cowles v. Cowles,
[6] In the case before us Yarbrough, as defendant, was a party to the first trial, and it was by reason of his successful appeal from the judgment there rendered that the amended complaint was permitted to be filed in the court below. He continued his active participation in the case and interposed a demurrer to the amended pleading. When it was overruled he waived notice of the order overruling the demurrer and giving him time to answer. So far as the record discloses, he took no more interest in the matter. From that fact it would seem that he invited the further action of the court, which resulted in default and judgment being entered against him. He had his remedy in the due and orderly procedure provided by the legislature for the correction of error in judicial proceedings. He failed to avail himself of it and cannot now claim that due process of law was in any way denied him.
The judgment is reversed, with directions that a writ of mandate issue as prayed for.
Langdon, J., Seawell, J., and Curtis, J., concurred.
Concurrence Opinion
I concur in the order for the issuance of a writ of mandate herein, not only upon the grounds set forth in the majority opinion, but upon the additional ground that, even conceding the judgment in the case of Gray v. Yarbrough to be void upon its face, the respondent herein does not stand in such a relation thereto as would enable him to attack such judgment collaterally upon that ground. The rule upon this subject applicable to judgments void upon their face is thus set forth in Freeman on Judgments: "It must not, however, be understood that all strangers are entitled to impeach a judgment. It is only those strangers who, if the judgment were given full force and effect, would be prejudiced in regard to some pre-existing right that are permitted to impeach the judgment. Being neither parties to the action, nor entitled to manage the cause nor appeal from the judgment, they are by law allowed to impeach it whenever it is attempted to *320 be enforced against them so as to affect rights or interests acquired prior to its rendition." (1 Freeman on Judgments, 5th ed., sec. 319.) The learned author cites a large number of cases in support of the foregoing limitation upon the right of assault collaterally upon a judgment void upon its face. The respondent herein comes within none of the classes of persons entitled to attack this judgment, conceding it to be void upon its face. He was not a party to the original action. He is not a party to the judgment rendered therein. His name is not mentioned therein and his whole connection with such judgment consists in the fact that he happened to hold the position of clerk of the court in which said judgment was rendered. Said judgment directs, not this respondent by name, but "the clerk of the court" to execute the conveyance in question in the event of the failure or refusal of the defendant so to do, and thus carry into effect the judgment of the court directing such conveyance to be made. As such "clerk of the court" this respondent is merely an administrative arm of the court performing a similar function to that performed by him when he entered the defendant's default, or filed or recorded the judgment entered thereon. From time immemorial courts of equity have made similar use of their clerks or bailiffs or sheriffs or other administrative officers to assist in carrying into effect judgments of this character, and in fact have found it necessary so to do in order to render effective their decrees. The administrative officers of the court so selected are in nowise injuriously affected by the judgment itself, and to allow such officers of the court rendering such a judgment to question its validity collaterally would be to open the door to serious interferences with the judgments and processes of courts on the part of those who have no interest in the subject matter of the judgment, but whose only duty in relation thereto is that of its enforcement. For the foregoing reasons I am of the opinion that this respondent is in no position to refuse to execute the purely administrative duty with relation to the judgment in question which the court, in order to render it effectual, directed its clerk to perform.
Dissenting Opinion
I am unable to concur in the conclusion in this case. I heartily concur, however, in so *321 much of the opinion as holds the answer on file to be a sufficient traverse of the allegations of the complaint.
The net result of the situation then is that a defendant who has fully answered the plaintiff's complaint has, without a hearing or a chance to be heard, had his property taken from him by ex parte] action of the court. The question may again be stated as follows: Is due process of law satisfied where a defendant has appeared and set up a complete defense to the cause of action against him and yet, having been given no opportunity to be heard, has had entered against him without fault on his part, a judgment depriving him of his property?
It is readily agreed by all that such an act of the trial court is erroneous and may be reviewed upon appeal or other direct attack. The judgment-roll in this case is offered in evidence in a proceeding brought to carry into effect the same judgment. There is grave doubt as to whether the resistance of such an attempt is not itself a direct attack, but for the purposes of this discussion it may be assumed to be a collateral attack. Is such a judgment void upon collateral attack?
It is a well-settled proposition that any action by a trial court in excess of its jurisdiction is void. The chief distinction between a collateral and a direct attack upon such a judgment is that in a collateral attack the evidence which may be received to show excess of jurisdiction is restricted to the judgment-roll as defined by law at the time of the rendition of the judgment. But where by a resort to such evidence the want of vitality in the judgment is demonstrated, the duty to declare it void is as imperative on collateral as on direct attack. This principle is found, among other places, in the following cases:People v. Greene,
In 15 R.C.L., page 847, section 321, under the heading "Collateral Attack for Want of Notice," it is said: "It is a fundamental principle of the common law, founded in justice and sound policy, that no judgment or decree affecting the person or property of an individual shall be valid, unless notice, actual or constructive, is given to the individual whose rights are to be affected. Every man is entitled to an opportunity to be heard in a court of law upon every question involving his rights or interests, before he is affected by any judicial decision of the question. Such notice and opportunity to be heard are essential elements of due process of law, and the sentence or judgment of a court without hearing the party or giving him an opportunity to be heard is not a judicial determination of his rights, and is not entitled to any respect in any other tribunal."
The judgment-roll in the case at bar consists of the pleadings and the judgment (Code Civ. Proc., sec. 670). The pleadings are the original and amended complaint and the answer. The judgment affirmatively shows the following: "In this action the defendants . . . were regularly served with plaintiff's second amended complaint herein, and defendant P.L. Yarbrough having filed a demurrer thereto, which demurrer was by the court overruled, and said defendant . . . having failed to answer plaintiff's second amended complaint within the time allowed therefor, and the defendant Elmer H. Gum, as sheriff of Placer county, California, having failed to answer or demur to said second *323 amended complaint, and the legal time for answering having expired, the defaults of said defendants . . . were duly entered according to law. . . ."
We then have a case where the answer has been ignored intoto. The defendant has been given no hearing and all he has received is a judgment against him, which directs him to deliver by assignment his property to plaintiff. Has he had his day in court under the terms "due process of law" or "law of the land"? It may freely be conceded that where jurisdiction of the subject matter and person are both present, any error, however gross or far-reaching, made by the court in the exercise of its jurisdiction, will not render a judgment void and relief therefrom may not be had by collateral attack. But it must always be remembered that this statement must be held to include the right and opportunity to be heard. If such right is denied, it is as though jurisdiction of the person is repudiated or disclaimed. "The denial to a party in such a case of the right to appear is in legal effect the recall of the citation to him." (6 R.C.L., sec. 446, p. 451.)
This is doubtless what Mr. Freeman (1 Freeman on Judgments, 5th ed., par. 360, p. 749), quoted in the majority opinion, means by the use of the following language: ". . . no errors or irregularities in the subsequent proceedings which do not induce a loss of such jurisdiction will avail to defeat the judgment." In the case under consideration the court in effect struck out, without cause, the answer of defendant. It was directly effective to "induce a loss" of jurisdiction. The principle here attempted to be stated is elsewhere set forth as follows:
"It is a cardinal principle of our jurisprudence that one shall not be bound or concluded by a judgment, either in respect to his person or property, unless he has had his day in court, by which is meant until he has been duly cited to appear and has been afforded an opportunity to be heard, and upon such hearing to offer evidence in support of his cause." (5 Cal. Jur., pp. 875, 876, sec. 224.)
"It was a maxim of the common law that no man should be punished without an opportunity of being heard, and it has been broadly stated that due process of law requires an orderly proceeding, adapted to the nature of the case, in *324 which the citizen has an opportunity to be heard, and to defend, enforce, and protect his rights. To assert that courts have inherent power to deny all right to defend an action and to render decrees without any hearing whatever is, in the very nature of things, to convert the court exercising such an authority into an instrument of wrong and oppression, and hence to strip it of that attribute of justice upon which the exercise of judicial power necessarily depends. . . . When the right to a hearing is denied, the mere giving of a notice is ineffectual for any purpose within the meaning of the constitutional guaranty. The denial to a party in such a case of the right to appear is in legal effect the recall of the citation to him. For example, ordering one to pay alimony without having had his day in court and a hearing on the question of the marriage, when that is denied, amounts to a taking of his property without due process of law." (6 R.C.L., sec. 446, pp. 450, 451.)
This principle has many times been recognized in California. The case of Hite v. Hite,
In McClatchy v. Superior Court,
Said case also discusses and cites with approval Hovey v.Elliott,
It is therein further held: "And, as showing that it is not sufficient that the court shall go through the mere form of citing a party to appear upon the pretense of giving him a hearing while in fact denying him the right in its substance, it is there said: `Until notice is given, the court has no jurisdiction in any case to proceed to judgment, whatever its authority may be by the law of its organization over the subject matter. But notice is only for the purpose of affording the party an opportunity of being heard upon the claim or the charges made; it is a summons to him to appear and speak, if he has anything to say, why the judgment sought should not be rendered. The denial to a party of the benefit of a notice would be in effect to deny that he is entitled to notice at all, and the sham and deceptive proceeding had better be omitted altogether. It would be like saying to the party, appear and you shall be heard; and, when he has appeared, saying, your appearance shall not be recognized, and you shall not be heard.' And, quoting from Galpin v.Page, 18 Wall. 350 [21 L.Ed. 959], it is said: `It is a rule as old as the law, and never more to be respected than now, that no one shall be personally bound until he has had his day in court, by which is meant until he has been duly cited to appear and has been afforded an opportunity to be heard. Judgment without such citation and opportunity wants all the attributes of a judicial determination; it is a judicial usurpation and oppression, and can never be upheld where justice is justly administered.'"
In the case of Foley v. Foley,
In the case of Meacham v. Bear Valley Irr. Co.,
In the case of Younger v. Superior Court,
This same principle has also been recognized many times in other jurisdictions. See Hovey v. Elliott, supra; Morley v.Morley,
In Lacher v. Venus,
These cases are all in point because there can be no difference between a case where the court had an excuse, although insufficient, for denying a hearing and a case like the one before us where no legal excuse existed.
The authorities cited in the main opinion may with profit be noted here. The first and only important one is In re Newman,
The issue as to service being in doubt upon the face of the record, it may well be that a situation was presented to the court in that action with regard to which the following language of Wharton v. Harlan,
Certainly in a collateral attack, the proof of service being in doubt, the judgment should not be disturbed. It is true that the court in the Newman case said by way of obiter this: "The fact that judgment was rendered upon default entered before the time allowing the defendant to answer had expired rendered the judgment erroneous simply, not void. A judgment thus rendered can be attacked only upon motion or by appeal, and by the parties in interest. Maldonado is the only party aggrieved by the decree, and he is the only one who can attack it in any way. (Anderson
[Alderson] v. Bell,
What is above said disposes of the cases of EndowmentDepartment, etc., v. Harvey,
It is no answer to this contention to say that the defendant was in duty bound to watch the calendar of the court to see if some action was being taken against him without notice and, so finding, he had the right of appeal. Such a position discounts the strength of the provision in our constitution requiring "due process of law." An appeal without evidence and without a chance to make a record is wholly insufficient to constitute a day in court and time need not be taken to cite authority on so evident a proposition. Likewise it is no excuse to say that a judgment void on its face may not be called into question by a party who has no beneficial interest thereunder or who is not injuriously affected thereby. The cases of People v. Greene, supra,People v. Davis, supra, and 15 R.C.L., supra, answer such contention beyond doubt. If such a judgment is a "dead limb upon the judicial tree" why may not a court of its own motion or at the behest of any other person, destroy the rubbish and decayed matter from the legal tree? Moreover, the defendant in this action is the identical person made a party to the judgment under examination. His failure to properly defend himself against said judgment might well bring him into an actionable position with one or the other parties thereto. Certainly said defendant has a legal duty to perform and should be allowed to perform it as he is the alter ego of one of the parties to the action in question.
The line of demarcation between void and voidable judgments is clearly marked and the judgment in question is void upon collateral attack in my opinion. This question I regard of grave importance for under a contrary holding any defendant over night might find himself in a position where he would have to go to the trouble and expense of *333 an appeal and in some cases he might discover his predicament too late to make direct attack on the judgment.
When a litigant submits to the jurisdiction of the legal forum and prays for a hearing he supplicates the throne of justice and not that of oppression. If he may not be heard, the court then becomes the executioner of one who has prayed for mercy and does exactly what it is organized to prevent. We should not hesitate, therefore, and weaken at the usurpation simply because the attack is collateral so long as the infirmity appears in a way to permit the attack, to wit, on the face of the judgment-roll.
Judgment of the court below was correct and should be affirmed.
Dissenting Opinion
I dissent. I am in accord generally with the views expressed by Mr. Justice Preston in his dissenting opinion. I entertain no doubt, however, that the attitude assumed by the respondent herein is in the nature of a collateral attack upon the judgment in the original action of Gray v. Yarbrough. (Howe v.Southrey,
In the present case no disputed question of fact is involved. On the record the main opinion declares correctly that the original cause was at issue, was heard and decided by the court and judgment pronounced without notice to the defendant. In such case it is not correct to assume, as is assumed in the main opinion, that the court had continuing jurisdiction of the person when notice of hearing under the law was necessary. The judgment on its face shows the defect of want of jurisdiction of the person. It is, therefore, void and "may be attacked anywhere, directly or collaterally, whenever it presents itself, either by parties or strangers. It is simply a nullity and can be neither the basis nor evidence of any right whatever." (Forbes v.Hyde,
In my opinion the respondent clerk was justified in disregarding the judgment relied on by the appellant. It imposed upon him no duty enjoined by law and the trial court was right in denying the writ of mandamus.
Rehearing denied.
Shenk, J., and Preston, J., dissented.