HIROKO KAWAKITA HAYASHI et al., Appellants, v. W. H. LORENZ et al., Respondents.
L. A. No. 22493
In Bank
May 28, 1954
Rehearing Denied June 23, 1954
848-858
For these reasons I would reverse the order appealed from with directions to enter an order setting aside the order appointing respondent guardian of these petitioners and all subsequent orders based thereon.
Appellants petition for a rehearing was denied June 23, 1954. Carter, J., was of the opinion that the petition should be granted.
Horton & Knox, Harry W. Horton and R. L. Knox, Jr., for Respondents.
TRAYNOR, J.—Plaintiffs appeal from an order of dismissal entered on defendants motion to dismiss for failure to prosecute. (
Plaintiffs complaint was filed on March 4, 1947. An amended complaint, filed on December 11, 1947, alleged that defendants had entered into a conspiracy to defraud plaintiffs of certain real property and that in pursuit of this conspiracy defendant Lorenz procured his appointment as guardian of the estates of plaintiffs Hiroko and Tomoya, and, as guardian, subsequently sold the property constituting the guardianship estate to defendant Rashid for much less than its market value. It was also alleged that defendants fraudulently procured the sale to defendant Rashid of certain property belonging to plaintiff Yasabura. (For a statement of the circumstances surrounding these events, see Guardianship of Kawakita, ante, p. 840 [271 P.2d 13].) Plaintiffs amended complaint ended with a prayer for compensatory and exemplary damages, or, alternatively, for damages and for an order declaring the guardians deed null and void and directing defendant Rashid to convey the property to plaintiffs Hiroko and Tomoya.
Defendants answered plaintiffs amended complaint denying the alleged conspiracy to defraud, denying that each of the orders in the guardianship proceedings was void on its face as plaintiffs claimed, and asserting that plaintiff Tomoya had no standing in court either because he was a citizen of Japan (with which the United States was then still at war) or because he was civilly dead as a result of his conviction of treason and sentence to death.
On February 18, 1952, plaintiff noticed a motion to set the cause for trial before March 4, 1952. Defendants filed a motion to dismiss the action for failure to prosecute on February 26. Both motions were heard on February 28, and, on the following day, an order was made granting the motion to dismiss. This appeal followed.
Plaintiffs contend that because defendants, in their answer, raised certain issues as to the validity of the orders in the guardianship proceeding (Guardianship of Kawakita, ante, p. 840 [271 P.2d 13]) and as to Tomoya s standing in court, they could not go to trial until there was a final determination in the guardianship proceedings and in the case of United States v. Kawakita, 96 F.Supp. 824. (Subsequently affirmed on appeal, 343 U.S. 717 [72 S.Ct. 950, 96 L.Ed. 1249], reh. den., 344 U.S. 850 [73 S.Ct. 5, 97 L.Ed. 660], motion to modify death sentence denied, 108 F.Supp. 627.) Both in their amended complaint and in their motion to vacate the orders in the guardianship proceeding, plaintiffs took the position that each of the orders therein was void on its face. In such a case they could be attacked and their invalidity shown at any time. “It is well settled that a judgment or order which is void on its face, and which requires only an inspection of the judgment-roll or record to show its invalidity, may be set aside on motion at any time after its entry, by the court which rendered the judgment or made the order. [Citations.]” (In re Dahnke, 64 Cal.App. 555, 560 [222 P. 381]; see also Olivera v. Grace, 19 Cal.2d 570, 573-574 [122 P.2d 564, 140 A.L.R. 1328]; Estate of Estrem, 16 Cal.2d 563, 571 [107 P.2d 36]; Luckenbach v. Krempel, 188 Cal. 175, 177 [204 P. 591]; People v. Davis, 143 Cal. 673, 675-676 [77 P. 651]; Winrod v. Wolters, 141 Cal. 399, 402-403 [74 P. 1037]; Kreiss v. Hotaling, 96 Cal. 617, 622-623 [31 P. 740]; People v. City of Barnes City, 105 Cal.App. 618, 622-623 [288 P. 442].) The proceedings instituted by Hirokos and Tomoyas motions to vacate the orders in the guardianship matter therefore provide no excuse for plaintiffs failure to bring this action to trial.
The issue raised as to Tomoyas standing in court is likewise unavailing. His judgment of conviction was entered on October 5, 1948, less than two years after the present action
Moreover, the record shows that Tomoya was absent from the state at the time the alleged fraudulent conspiracy was formed and implemented. He had therefore, no first-hand knowledge of the facts on which plaintiffs causes of action were based. Plaintiffs have thus made no showing that Tomoyas presence was necessary at the trial, or that the trial could not have been had in his absence.
Plaintiffs also contend that the proceedings in the probate court and in the case of United States v. Kawakita, supra, constituted a partial trial of this action and thus suspended the operation of
Plaintiffs final contention, that the appeals in Guardianship of Kawakita, ante, p. 840 [271 P.2d 13], and United States v. Kawakita, supra, made it impossible to bring this action to trial and necessarily suspended the operation of
Shenk, J., Edmonds, J., Schauer, J., and Spence, J., concurred.
CARTER, J.—I dissent.
When the trial court based its dismissal of plaintiffs action on the provisions of
Where there is good reason for an extended delay, where a party is unable for good reason to proceed to trial or where it would be futile or impracticable to prosecute the action promptly, an exception to the dismissal provisions of
In the case at bar the defenses, which were set up by defendants in their answer to plaintiffs complaint, made it highly impracticable, if not impossible, to proceed to trial until a final determination was had in two other proceedings. As one affirmative defense, defendants alleged that plaintiff Tomoya Kawakita could not maintain the action because he was an enemy alien and since the causes of action were joint, all plaintiffs were therefore barred. In another separate defense defendants alleged that certain matters had already been conclusively determined in a prior probate proceeding. The final answers to both these defenses were, as I shall point out, dependent upon the final outcome of two other proceedings. In view of this, it would have been futile for plaintiffs to have attempted to proceed with the trial until a final determination was had in these other two matters.
First, let us consider the effect of the defense that plaintiff Tomoya was an enemy alien. As a separate and affirmative defense defendants alleged “That plaintiff Tomoya Kawakita was not at the commencement of this action, and is not now a citizen of the United States, but was and is an alien and a citizen of Japan; that at the commencement of this action the government of Japan was and still is at war with and is an enemy of the United States; that by reason of the foregoing and the further fact that the first cause of action of said Amended Complaint is joint and not severable, the cause of action is barred.” (A similar defense was set out against the second cause of action.) Such a defense would no doubt have been effective if Tomoya were actually an alien and a citizen of Japan since at this time a state of war still existed between the United States and Japan.
It is well established that the rights of enemy aliens to prosecute actions are, in most respects, suspended during time of war. In considering
Looking to the facts of the case at bar we find that prior to the filing of defendants answer, on November 8, 1949, plaintiff Tomoya had, on September 2, 1948, been convicted of treason and found to have been a citizen of the United States. An appeal was thereafter taken and one of the principal issues was whether or not Tomoya was an enemy alien or a citizen of the United States. Due to the appeals, a final determination of Tomoyas citizenship was not had until June 2, 1952. At that time the United States Supreme Court, in a close four to three decision, held that Tomoya was, and at all times had been, a citizen of this country. (Kawakita v. United States, 343 U.S. 717 [72 S.Ct. 950, 96 L.Ed. 1249].) It thus becomes apparent that the question as to Tomoyas citizenship, which defendants sought to raise in their answer, was in constant litigation in the federal courts from a time prior to defendants answer until June of 1952, yet the instant case was dismissed on February 29, 1952. It would have been highly impracticable and futile for plaintiff Tomoya to have attempted to litigate his alleged citizenship in the California courts when the question was then currently a highly contested issue in the federal courts.
The second defense which necessitated a delay in bringing the instant action to trial, was the allegation by defendants that plaintiffs had no cause of action for fraud or conspiracy to defraud due to the findings of the prior probate order. Such a defense pointed out that the probate order of May 22, 1942, provided that the property involved was not worth more than $6,000; that the property was sold for $6,000; and that Tomoya and Hiroko had no interest in the property since said property was encumbered for more than $24,000. This order which defendants rely on was the order permitting and approving the sale of the real property of the guardianship.
In their effort to avoid this defense, based on the prior order, plaintiffs moved to have the probate court set aside
In the instant case proper notice as required by statute (
It could be argued that the guardianship proceedings were subject to collateral attack in the instant proceeding and that it was unnecessary to institute the motion to revoke in the probate court; however, such an argument loses sight of the practicality and expediency of the procedure followed by plaintiffs. If plaintiffs had attempted a collateral attack of the probate order they would have encountered almost insurmountable difficulties: Such difficulties were adequately pointed out in Asher v. Yorba, 125 Cal. 513, 515 [58 P. 137] when this court stated that “It must be borne in mind that this appellant is here making a collateral attack upon a judgment decreeing a sale of the minors land, and, consequently, all the rules of law hedging about the validity of such decrees are to be invoked against her. The order of sale in this case is presumed to have been a valid one. It behooves her to show to the contrary. The burden is upon her to show a void sale. The absence of evidence in this record showing the jurisdictional facts may be taken as evidence against her. If the
On the other hand, as stated in In re Dahnke, supra, 64 Cal.App. 555, 561, “A motion to vacate a judgment or an order is a direct and not a collateral attack; and on such motion, if it be made in time, any facts going to show the invalidity of the judgment or order may be presented—facts dehors the record as well as facts appearing on the face of the judgment-roll or record. (Norton v. Atchison etc. R. R. Co., supra [97 Cal. 388 (30 P. 585, 32 P. 452, 33 Am.St.Rep. 198)]; Estate of Eikerenkotter, supra [126 Cal. 54 (58 P. 370)].)” The court in the Dahnke case also noted that a judgment or order which is void on its face, and which requires only an inspection of the judgment-roll or record to show its invalidity may be set aside at any time by the court which rendered the order. It therefore becomes apparent that, as a practical matter, the best and most effective method of attacking the guardianship was in the probate court as plaintiffs sought to do. Until the validity of the guardianship orders were finally determined it would have been practically futile, if not impossible, to have proceeded to trial in the instant action. (See Westphal v. Westphal, supra, 61 Cal.App.2d 544; Pacific Greyhound Lines v. Superior Court, supra, 28 Cal.2d 61.)
In view of the fact that it would have been impossible and futile, from a practical standpoint, to proceed to trial until the foregoing issues, pleaded by defendants in their defense, were finally determined, the case should be removed from the effect of
For these reasons I would reverse the judgment of dismissal.
Appellants petition for a rehearing was denied June 23, 1954. Carter, J., was of the opinion that the petition should be granted.