241 P. 584 | Cal. Ct. App. | 1925
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *706 Walter Hogan, the petitioner herein, is a judgment debtor in an action brought against him by Barbara Hecker, as the administratrix of the estate of Charles Valentine Hecker, deceased, and seeks by this proceeding to prohibit the enforcement of a money judgment rendered against him in that action upon the ground that said judgment is void.
It appears from the judgment-roll, a certified copy of which is annexed to and made part of respondents' return herein, that the judgment in said action was rendered by *707 the respondent court, on February 19, 1924, after trial, in favor of "the plaintiff Barbara Hecker, administratrix of the estate of Charles Valentine Hecker, deceased, and sole heir of said estate" for the sum of $11,890 and costs. It further appears from said judgment-roll that an appeal from the judgment was taken by the petitioner and on April 7, 1925, on motion of plaintiff and respondent therein, was dismissed by the supreme court. Thereafter, and on April 10, 1925, the petition alleges, said Superior Court granted an ex parte order substituting Barbara Hecker, individually, as party plaintiff in said action in the place and stead of Barbara Hecker as administratrix of said estate, which substitution, it is alleged, was followed by the issuance of an execution in the name of the substituted plaintiff.
[1] The ground upon which petitioner claims said judgment is void is that after the action was commenced, and prior to the trial thereof, the estate of said deceased had been distributed, the administration thereof closed, and the administratrix discharged, and that therefore the action was without a plaintiff when it was tried and when judgment was rendered. None of those facts is revealed even inferentially by the judgment-roll; they are brought before us in this proceeding by means of a pleading which petitioner has offered for filing since oral argument, entitled "Petitioner's reply to respondents' answer," and which sets forth copies of the following documents: Order substituting party plaintiff, made after dismissal of the appeal; order made after dismissal of appeal for entry of judgment against the sureties on the appeal bond; order and decree of settlement of account and final distribution, and order of final discharge of administratrix, in the matter of the estate of said deceased; also a copy of the engrossed bill of exceptions settled and allowed by the trial judge, in the matter of petitioner's appeal from the judgment in said action. Nothing is contained in either the order of substitution or the order for entry of judgment against the sureties, relating to the discharge of said administratrix. Assuming, as petitioner contends, that said order of substitution and said order directing entry of judgment against the sureties do form part of the judgment-roll in said action, it is apparent that the probate orders and decree, embodied in said pleading, do not constitute any part of said judgment-roll, *708 and hence, under the authorities neither of those documents, nor any matter or fact appearing therein can be considered in the determination of the question of the nullity of said judgment.
[2] A proceeding of this nature, to prohibit the enforcement of a judgment, constitutes a collateral attack upon that judgment (Wiggin v. Superior Court,
[6] The judgment-roll here shows that the trial court acquired jurisdiction over the parties and of the subject of the action; the judgment is regular upon its face, and embraces only such matters as were within the power of the trial court to adjudicate and within the scope of the pleadings. Its jurisdiction was therefore complete (Crew v. Pratt,
[7] Petitioner's contention that the judgment is void is based upon the theory that under all circumstances a judgment rendered for or against a dead person is void, and he likens the situation of the plaintiff administratrix herein to that of a party plaintiff who has died since the commencement of an action, but in whose name the judgment is nevertheless rendered. In support of such theory he cites the Estate of Parsell,
[8] Furthermore, it would appear that since said judgment is not void, whatever objections petitioner may have had to its irregularity were involved in the appeal which was subsequently dismissed, and that he is concluded by such judgment of dismissal (Lake v. Bonynge,
[9] The judgment herein, which was obtained by former counsel for Mrs. Hecker, was by its terms made payable to Barbara Hecker in the dual capacity of administratrix and sole heir of said estate. The entire estate being distributed to her, she became the successor in interest, as such distributee, to the fruits of said judgment (Blinn Lumber Co. v. McArthur,
For the reasons above stated the writ is denied.
Tyler, P.J., and Cashin, J., concurred.
A petition for a rehearing of this cause was denied by the district court of appeal on November 25, 1925, and a petition by petitioner to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on December 24, 1925.
All the Justices present concurred. *714