147 P. 233 | Cal. Ct. App. | 1914
Lead Opinion
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *3 On the twenty-first day of June, 1909, Antonio F. Lima instituted this suit for a divorce against his wife, Isabel F. Lima, in the superior court of Alameda County. The complaint, which was not verified, alleged that the defendant had been guilty, on divers occasions, one of which is specifically stated, of acts of adultery with one Manuel Drack, and further alleged that she "is now living and cohabitating with the said Manuel Drack, the place where being unknown to this plaintiff."
The complaint declared that the plaintiff and the defendant were the owners of certain real estate, which was community property, situate in the county of Alameda, the same consisting of several town lots in Brooklyn township of said county, and being specifically described in the complaint.
The prayer of the complaint was for a decree dissolving the bonds of matrimony existing between the parties and assigning, setting over, and awarding to the plaintiff all the community property described in the complaint.
Service of summons was attempted by publication, and, the defendant having failed to make any appearance within the time prescribed by law in such cases, her default was thereupon entered. On the twenty-seventh day of October, 1909, and after due proceedings, an interlocutory decree was made and entered, declaring the plaintiff to be entitled to a decree of divorce against the defendant on the ground of adultery and assigning, distributing, and awarding to the plaintiff the community property described in the complaint. On the thirty-first day of October, 1910, a final decree granting plaintiff a divorce and awarding to him the community property referred to in the complaint was rendered and was filed on the first day of November, 1910.
On the nineteenth day of December, 1912, the defendant filed and served upon R. B. Tappan, Esq., attorney for the plaintiff, a notice of motion "to set aside the judgment heretofore rendered herein, upon the ground that said court never *5 acquired and never had jurisdiction of the subject-matter of this action or of the person of the defendant herein." Said motion having been duly heard by the court, the same was denied, on the tenth day of January, 1913.
Thereafter, the defendant, after giving due notice thereof to the attorney for the plaintiff, submitted a motion to set aside and vacate and annul the order made herein for the publication of summons, and the interlocutory and final decrees of divorce, upon the ground that the court never acquired or had jurisdiction to order the publication of the summons and, therefore, no legal authority to enter the interlocutory and final decrees herein. This motion, having been duly heard by the court, was denied.
Although the defendant has appealed from both the orders above mentioned, the points submitted for decision here may be effectually reviewed and decided on the appeal from the order denying the second motion above referred to, and we shall, therefore, confine ourselves in the consideration and decision of this cause to that order.
It is conceived proper to explain at this point that, on the nineteenth day of August, 1911, and prior to the time at which were instituted the proceedings culminating in the orders appealed from, the plaintiff, Antonio F. Lima, died. His widow, Annie S. Lima, to whom he was married on the day succeeding that upon which he was granted a final judgment for divorce from the defendant, and to whom, after said marriage, he conveyed by deed the property described in the complaint as having been the community property of himself and the defendant, petitioned the court below for permission to be represented in these proceedings by her attorneys, Messrs. Gehring Wyman, setting out in her petition that, since she was not a party to this action, it was necessary that she should be so represented in order that her rights in the property described in the complaint be protected. The court allowed her petition and counsel appearing here as amici curiae are in fact representing the interests of the said Annie.
The specific point made by the defendant is that "the order for publication of summons is void because there is no affidavit of merits and no showing by any verified paper on file, wherefrom it can be found that plaintiff had a cause of action against defendant." *6
As stated in the opening brief of counsel for the defendant, the rule is well settled that substituted service of summons, being purely of statutory origin and in derogation of the common law, can be made effectual only by a substantially strict observance of the terms of the statute authorizing it. If, therefore, there has not been such a compliance with the statute, the service is void and the court fails to acquire jurisdiction of the person of the defendant and is for that reason without jurisdiction to render and enter judgment against him in the action in which such summons has been issued.
Section
"Where the person on whom service is to be made resides out of the state; or has departed from the state; or cannot, after due diligence, be found within the state; or conceals himself to avoid the service of summons; . . . and the fact appears by affidavit to the satisfaction of the court, or a judge thereof; and it also appears by such affidavit, or by the verifiedcomplaint on file, that a cause of action exists against the defendant in respect to whom the service is to be made, or that he is a necessary or proper party to the action, . . . such court or judge may make an order that the service be made by the publication of the summons. . . ."
Thus it will be observed that one of the essential prerequisites to conferring upon the court the authority or jurisdiction to make an order for the publication of summons is a showing, either by a verified complaint that has been filed, or by an affidavit, that a cause of action exists against the defendant in respect to whom the service is to be made. It, of course, necessarily follows that in the absence of such a showing by either of the modes prescribed by said section an order for the publication of summons would be nugatory and, therefore, absolutely void. And, obviously, if the court was without jurisdiction to make the order for the publication of the summons, there was no legal publication and hence no service of summons, and, obviously, a judgment rendered and entered against the defendant on such a publication of summons would be coram non judice and consequently void ab initio. *7
The question here, then, is: Was it made to appear, by either of the two ways pointed out by section
The complaint confessedly states a cause of action for divorce upon the ground of adultery, but, as seen, it is unverified, and upon it, manifestly, the court would be without authority to make an order for the publication of the summons directed to the defendant. It remains to be seen, therefore, whether the affidavit filed by the plaintiff meets the requirement of the statute in the respect referred to and was, therefore, sufficient to clothe the court with the authority to make the order.
After alleging that a suit for divorce had been instituted by the plaintiff against the defendant by the filing of a complaint for that purpose in the superior court of Alameda County, that the defendant had, previously to the filing of said complaint, departed from the state of California and that her whereabouts were then unknown and could not after due diligence be ascertained, the affidavit proceeds: "I have fully and fairly stated the facts of this case to R. B. Tappan, whose office is at the northeast corner of Santa Clara Avenue, in the city of Alameda, in said county and state, who is my counsel, and I am by him informed and I verily believe that I have a good cause of action in this suit against the said defendant, as will fully appear by ray complaint now on file herein, to which reference is hereby made and the said defendant, Isabel F. Lima, is a necessary and proper party defendant thereto, as I am advised by my said counsel, after such statement made as aforesaid, and as I verily believe."
It requires no argument to show that nowhere in said affidavit is it made to appear that a cause of action for divorce existed in favor of the plaintiff against the defendant. The complaint is not even made a part of the affidavit, assuming that such a course with respect to an unverified complaint would be sufficient to include the averments of said pleading as among the facts sworn to in the affidavit. Nor does plaintiff, in the affidavit, either expressly or upon information and belief declare that the facts alleged in the complaint are true. The statement that the plaintiff is advised by his counsel and that he "verily believes" that he has a good cause of action is only a conclusion of the affiant or his attorney, upon whose *8
advice in that regard he relies. "Such an averment is neither the statement of an ultimate fact, such as is required to be stated in a pleading, nor of a probative fact from which such ultimate fact may be deduced, nor a fact of any sort which in any way legally tends to prove such ultimate or probative fact, or from which it may be inferred. It is not the statement of a fact at all." (Forbes v. Hyde,
The code section is in clear and simple language and plainly means that the ultimate facts alleged in a verified complaint, if they state a cause of action, are sufficient to vest in the court the jurisdiction to make an order for the publication of a summons; but that, where the complaint is not verified and an affidavit is relied upon, the latter instrument must, within the real contemplation of said section, stateprobative facts from which the court may infer the fact of the existence of a cause of action in favor of the plaintiff. (County of Yolo v. Knight,
But counsel for the plaintiff undertake to differentiate this case from the case of the Columbus Screw Co. v. Warner Lock *9 Co.,
Another point sought to be maintained by the respondent is that the action has abated by reason of the death of the plaintiff since the rendition and entry of the final decree, and that there is, therefore, no power in the court to revive it for any reason or purpose. It is obviously true that the effect of the death of one of the parties to a divorce suit whose sole and only object is to sever the matrimonial bonds existing between them is to extinguish the action and the cause of action. It is also true in this state that the settlement of property rights between the parties is regarded merely as "an incident of every decree for divorce where there is any property involved." (Mott v. Mott,
Counsel for the respondent cite, as supporting their position in this case upon the question of the effect of the death of a party to a suit for divorce upon the action, the following California cases, viz.: Kirschner v. Dietrich,
Our conclusion is that the court was wholly without jurisdiction to make the order for the publication of the summons and that consequently, all the proceedings thereafter had in the cause and depending upon said order of publication were likewise beyond the jurisdiction of the court and void, and that, therefore, this is not a case where there is mere error of judgment but no defect of jurisdiction, as was true in the case *12
of Dusy v. Helm,
The orders appealed from are reversed.
Chipman, P. J., and Burnett, J., concurred.
A petition to have the cause heard in the supreme court, after judgment in the district court of appeal was denied by the supreme court on January 18, 1915.
Henshaw, J., did not participate in the denial of the petition.
Angellotti, C. J., Sloss, J., and Lawlor, J., dissented from the order denying a hearing in the supreme court, and filed the following opinion thereon on January 19, 1915.
Dissenting Opinion
I dissent from the refusal to grant a hearing in this court, after decision by the district court of appeal for the third district. If the decree of divorce was void for want of the jurisdictional prerequisites to an order for publication of summons, the defect is one that is apparent on the face of the judgment-roll, and the defendant's interests can be fully protected without any order setting the judgment aside. In any proceeding involving her status as a wife, or her property rights, she may assail such judgment collaterally, and successfully object to its use against her. Since the plaintiff in the action died before the making of these motions, there was no one upon whom the defendant could serve notice of motion to set aside the judgment. The trial court may no doubt upon its own motion set aside a judgment void on its face. If it had so acted here, and we were satisfied from an inspection of the judgment-roll that the judgment was void, the order made would not have been reversed on appeal. But this is a matter within the discretion of the court below. Its refusal to set aside the void judgment should not be reviewed, for the sufficient reason that the defendant is not aggrieved *13 by such refusal, her rights being, as above pointed out, already fully protected. All of this, of course, is on the assumption that the judgment is void, a question that in my view it is not necessary here to decide, and that should be left for decision in a case in which the parties interested may appear and be heard.
Of course, the alleged second wife of the original plaintiff, not being a party to this proceeding, is in no way bound by any disposition which may be made thereof. In a proper action to which she is a party, she may assert or defend her claim to the property involved absolutely regardless of such disposition. It may well be that in such an action as one to quiet title to this property, to which she and defendant are parties, it may develop that for some reason defendant is estopped to assert any claim to the property, or is barred by laches, notwithstanding that the judgment may be void on its face. No useful purpose is subserved by a reversal of the action of the trial court on these motions.
Sloss, J., and Lawlor, J., concurred.