*1 A. No. 21062. In Bank. Oct. [L. 1950.] WILLIAMS, Deceased. of EDITOR SEBASTIAN Estate OCTAVIA WILLIAMS, Appellant, WILLIAMS, Respondent. Why Appellant.
Newton Van for Craig Ferguson Respondent. Gavin Morse and Vernon L. The probate objections court sustained EDMONDS, J. *2 the final account of the executor Williams to Editor the wife realty her of certain distribution to and ordered of his will community property. The share of the her as personalty and question for decision the as presents executor of the appeal upon de interlocutory decree of divorce entered whether an rights upon a non property estoppel as effects fault defendant. resident Williams were ago, Editor and Octavia years
More than In They together 1929. lived until Mississippi. married in Thereafter, fled from the state. her and year he shot any certainty of his whereabouts. knew with never Octavia Angeles, and in Los heard friend, was From a she occasionally through his him communicated until 1934 she aunt. her death Angeles and until came to Los Editor Wil- known Gertrude became as with a woman who cohabited depos- 1944, they opened joint bank account liams. died, balance in the account $1,200. When Gertrude ited the relative con- does not show The evidence $500. was about to the account. of each of them tributions $4,750. property real Early purchased in 1945, Gertrude $1,000 by check was made payment into escrow An initial account; repre- joint the balance was bank drawn their trust for by a deed of promissory note secured sented death, her name. Until Title taken Gertrude’s $3,750. man and together property on the as Editor she and lived wife. marriage subsisting aware of the Whether Gertrude appear the record. Octavia does Editor and between prop- resided During Editor and Gertrude the time totaling employed and installments both of them were erty, does promissory note. evidence were $750 payments. the source of these show leaving property all of her Gertrude died testate realty personal property improved consisting some pf “my designated will husband.” whom in her Editor, she probate property and the distributed admitted to The will was to him. Angeles against divorce action Los then filed a
Editor hy pub- Octavia and the summons and were served complaint alleged that there was no lication. The property belonging parties. matrimony dissolved,
that the bonds of be and the interlocu- tory provision respecting decree entered 1946 makes no parties. year
Editor died less than one after the Avas entered. attorney, apparently His uninformed as to his client’s death, caused a entered According 1947. testimony, Octavia’s uncontradicted she had no until divorce action after Editor’s death.
Editor devising brother, left will all of his property to his J. P. Williams. The personal estate consists of the real and Gertrude, distributed from the estate of an auto- mobile, joint bonds in the names of and decedent, Gertrude evidently $50.0in cash, which includes balance joint bank account.
When the final presented, of the executor account objections *3 Octavia filed ground that estate is the herself and Editor that, and widow, as his she is entitled of it. The to one-half probate court ordered distribution her of one-fourth of to entire estate. The appealed executor from part has that the decree. probate contends executor that the court’s determina- by supported is evidence. There tion not no evidence, is he says, showing purchase that one-half of price of the real by personal property OAvned and Editor at the time of his paid money acquired with him, death was earned by or other by gift, inheritance, during than devise or time and argued were man and It is Octavia wife. further Octavia estopped is or from challenging allegation barred in Edi- tor’s for divorce to the effect that there was no community property deny because her failure to it constituted an admission its truth and a contract between them. support distribution, of the order of Octavia asserts:
(1) The divorce decree did not determine the character of property. regard decree is not conclusive this because property rights. for no determination of (2) A publication defendant who is served without knowl- edge of the action is assert a probate property, interest in decree court (3) The 292 evidence, during the entire
supported substantial and Editor lived the land as husband and time Gertrude earning This, employed money. with wife, he was joint supports bank an inference testimony account, as to the real paid that he at least one-half of the consideration for the acquired during the meretricious rela- personal property tionship. realty ground upon by Octavia is that the
Another relied in Gertrude's name because and the automobile were held being risk of exposed Editor do would have otherwise argues estoppel applies by his wife. She also located pendency of knowledge of liti- actual to a defendant with an community property gation who makes or issue the action. justified probate evidence, court was deter-
Upon the Octavia, one-half of his mining that, as Editor and between therefore, entitled to is, estate is judg- estopped by one-fourth of unless she inment the divorce action. ease interlocutory in a divorce decree
“It is true that or proper to all judicata with is conclusive and res thereby. so determined necessary When issues determined to be in the nature of a has been said entry of upon the parties, contract between the community property becomes decree the appeal or other subject only on conclusive, to attack final and Cal.App.2d 50, remedy.” (Green Green, statutory litigation is based subsequent 679].) Where from that upon a different of action cause “ between based, is conclusive prior suit was [T]he questions actually litigated parties in such a case as to as to judgment. It is not conclusive and determined litigated might have been but were questions which estoppel.” of collateral This is the doctrine original action. quoted approval a, comment (Rest., Judgments, 68,§ *4 Cal.App.2d 63 Babcock, and Babcock v. Green, supra, Green v. 94 [146P.2d279].) ‘‘That provides: Procedure 1911 the of Civil of Code Section judgment former adjudged only have been deemed to adjudged, or which so face to have been appears on its necessary or actually necessarily therein included ’’ may seek a action parties to a thereto. issue is rights, such an property but of their determination from appear If it not essential to the action. does 293 rights by it, they determined decree that were are may subject adjudicated and to have been be the. not deemed (Tarim independent Katz, v. 216 554 of action. Cal. [15 334]; Green, supra; 85 v. Callnon v. 493, P.2d A.L.R. Green 988].) Cal.App.2d 676 P.2d Callnon, 7 [46 not, The decree of divorce did there awarded Editor fore, necessarily property rights include a determination of present bar from unless, and is no action the face decree, may it be said that the issue complaint alleged decided. The that there was no property, but that the of matri bonds mony “. . dissolved. The decree recites that . judgment . .,” is entitled to a from defendant . but any provision neither it nor makes respect ing property rights parties. circumstances, Under such it cannot be any said the court decided issue other than right to a divorce.
The fact by that the was secured default does not application special warrant judg “A rule. default ment estoppel is an all necessarily litigated issues therein thereby exactly determined judgment. like other ; (Horton . .” Horton, . v. 18 Cal.2d 585 P.2d 605] [116 Strong Shatto, v. 201 ; Harvey Cal. 555 P. Griffiths, [258 71] Cal.App. 17, 22, 133 Judg 23 ; P.2d 3 Freeman on [23 532] ments, 5th ed., p. 2960, 1296.) course, Of a court in a § may grant beyond action relief that which is complaint (Code demanded Proc., 580; Civ. Burtnett § King, 33 805 Cal.2d 333]), A.L.R2d but [205 case problem. does not involve The decree by obtained Editor is silent as to property and the validity scope do not challenge attack its or it nor being either void or It erroneous. did no more to declare than that the matrimony dissolved, bonds of should be jurisdiction unquestioned. court’s to that extent is foregoing
Tested principles, it is clear that Octavia is not to claim one-fourth of the estate Editor argued reason of the decree. However, she is making barred from such claim because of her failure deny allegation in Editor’s for divorce to the effect that there was no position taken executor is based statements deciding 1168], Brown v. Cal. 1 P. complaint alleged
Mrs. Brown’s that there was no *5 prayer the that she- be
property and awarded a judgment divorce. a default The husband did answer and granting making wife a divorce but no men- was entered the rights. Subsequently, tion of the wife initiated an to in to action establish her title as tenant common alleged community the time belonged which she to the of at the action. court said: “Where a defendant is This complaint stating upon served a summons and the facts with required pre- he act, default, which is to and he makes is sumed to admit all the facts which are well the pleaded upon complaint. judgment The this sort of follows law, complete adjudica- is, contemplation admission prayer parties tion all the embraced in the arising complaint, for relief and from facts stated against him. including the facts in his favor as well those propo- presumed here have is acceded complaint sition have embraced and to consented that plaintiff prayed for, relief obtain the therein should complaint. the conditions and facts set forth equivalent plaintiff proceeding is to a statement Brown object alleged, that he based did not to a divorce for cause existing theory community property that there was no begun. at the is rendered time the action was When effect, complaint it default, becomes, such a that be final contract between shall everything with within properly embraced and in the for relief.” (Brown Brown, p. 5.) supra, at
Despite case and similarity Brown surface between present quoted lan- action, nor the neither decision guage any application this court. has to the facts now before alleged plaintiff, Mrs. there was no property. subsequent action plaintiff in the also allega- previous in which her claimed, she in contradiction of tions, not the property. she, that there was It was such pres- In the estopped. defendant husband, who was held to be case, pleadings ent filed Octavia was not divorce action. Her contention statement property then existed inconsistent previously v. Brown in Brown her, and the decision inapposite. concerning Brown case opinion The statements who a defendant been made have presumed admissions It him against are dicta. to be taken permits a default defendant husband was held plaintiff wife and not the who to assert the existence of assuming stated, appli- the correctness of the rule has no But defendant, Brown, here “The cation to facts shown. duly and made served with summons and *6 action, whereupon court, upon produced the evidence support allegations complaint, the inter- locutory . . . allega- decree . . . all the recited that [which] testimony complaint were sustained tions (170 5.) . .” p. were true. . Cal. at And the state- court’s qualification: ment of the rule of law a includes the “Where complaint. is served with summons and . . .” (170 p. 5.) Cal. at
Octavia Williams was not served with summons or com plaint. knowledge proceedings had no the divorce after until Editor’s death. Under such there circumstances, presuming “. . no basis for that she . acceded to the propo complaint sition embraced . . . consented that plaintiff should obtain the relief therein prayed for, upon the complaint.” (170 conditions and facts set forth in the Cal. p. 5.) at The entered without actual equivalent her part on is not the statement of a object her . to Editor that she “. . did not to a divorce for theory alleged, based cause that there no community property existing at time action was begun.” p. (170 5.) Cal. at complete Where there is a lack of knowledge part on the action, a defendant of the would be unreasonable to hold that . . “. be comes, effect, parties between the judg contract that the ment everything properly shall be to em braced within complaint and in the ” (170 5.) for relief. p. Cal. at following cases cited v. supra, have Brown proposition default decree judicata of divorce is res as property: Katz, nonexistence of Tarien v. 216 ; Cal. 554 P.2d 85 Paris, A.L.R. Paduveris v. [15 334] 213 ; Metropolitan Cal. 172 P.2d Ins. Co. v. [1 986] Life Welch, 202 Cal. 545]; Maxwell, 312 P. Maxwell v. 66 [260 Cal.App.2d 549 Bindley P.2d 530]; Hindi, v. 57 Cal. [152 App.2d 421]; P.2d Gallnon, 717 Gallnon v. Cal.App.2d 7 [135 676 988]; Stone, v. Cal.App. Stone 415 P. [46 However, applied the rule has never been such facts 993]. those proceeding. shown complaint alleged Katz, supra, the and the court
In Tarien v. . property existed, “. . but amount, found that put in thereof were not issue nor did character value dispose anywise attempt thereof. Under such tenants in circumstances the became common of the ’’ distinguished The situation there was Brown, supra, upon ground from that shown Brown alleged complaint case “. . . the and the that in latter (216 community property.” court found there p. 559.) Cal. at inapplicable in was also held to be Padu- Brown case “. . . Paris, supra, because an admission made
veris v. equivalent adjudication.” not the of an failure to answer alleges belong certain where the Thus, . cannot “. . be con- community, the court’s silence ’’ community. adjudication that the strued as an (213 p. 172.) Cal. at supra, Welch, Co. Metropolitan Ins. Life belonged specific property
for divorce that certain pleaded community. defaulted and the court The defendant *7 community property of plaintiff “all of the decreed to the Brown, Relying upon Brown v. plaintiff defendant.” and operated as that divorce decree supra, this court concluded the property other no adjudication that there was complaint, the but stated: in specifically than described that applicable when the final not be rule, course, “This of would community prop the disposition whatever of decree makes no in erty. spouses become tenants In a case the former such rights their thereto in and property common the (202 p. Cal. at subsequent action.” be determined a could 318.) v. Max- applied Maxwell rule case was of Brown plaintiff important Maxwell, it to note
well, supra, but is filed an admis- proceedings, “. . . as defendant in the divorce jurisdiction, a to the process, of a consent sion of service Further, process or of notice.” waiver of further service complaint are allegations “all of court found that by testimony from all free they and that are true, sustained legal exceptions. ...” case, party Lindley Hinch, supra, Brown v. as
In community property seeking of establish the existence alleged had there prior action who estopped. to be of was held property. such nonexistence Callnon, supra, the Brown' v. ease was Callnon cited with question approval application it had to the then but before the court. challenged Stone, decree Stone v. supra, recited that complaint of allegations true, and, although were serv- by publication,
ice the defendant knowledge had actual allegations of presumably of the terms interlocutory decree within a month after the decree applied was entered. The court rule the Brown case because defendant had of the complaint and of “. . . prior eleven months entry He opportunity final decree. had full to seek judgment relief from provisions under the of section 473 ’’ (58 of the Code of Civil Procedure. Cal.App. p.at 418.) For reason, held, it was defendant the divorce action judgment upon could not attack the the basis of fraudulent complaint. in the The basis for the rule of clearly the Brown is case shown by the statement of this court’s comments in Paduveris v. Paris, supra. “Where a defendant is served awith sum- mons and complaint stating the facts which he re- is quired act, and he default, presumed makes to admit ’’ all the facts which well pleaded complaint. (Brown are supra, p. 5.) at “The default of the defendant the divorce action constituted an admission of the truth plaintiff’s allegation community.’’ (Paduveris Paris, 172.) supra, p. at judgment “Since a conclusive as to admitted or uncontested matters it was founded, judgment by a personal juris- default where diction of the defendant has been obtained is as conclusive ’’ either estoppel as an or bar in a contested case. (2 Freeman on p; 1393.) Judgments, holdings cases, may these
To summarize entered a default alleging as to facts when he has for divorce *8 knowledge with or has actual served summons personally been litigation. rule applied But this has been of the existence finding express alle- the record shows an where none of conditions is gation property. Because those case, not from assert- Octavia shown ing estate of Editor. was not served her claim the complaint, had no summons or proceeding Editor, after death there was until regarding prop- of his finding that erty were true. is affirmed. Carter, J., Spence, Shenk, J., J.,
Gibson, J., Traynor, C. J., concurred. judgment. This decision
SCHAUER, J. I concurin the ex follows, sílentio, the views accepts and sub apparently opinion Young Young De concurring pressed in the De seq. 457], et Cal.2d (1946), 27 . 21463. In Bank. Oct. A. No. 1950.] [L. REICH, Respondent, ANDREW SCHUBERT, FRANK H. Appellant. Appellant.
Clyde Thomas for Respondent. for David S. Smith action with CARTER, Plaintiff commenced J. process grade under which a contract and cross- Defendant answered plaintiff. dates owned work, and obtained compensation grading for complained lien he had a $7,287.16, and a declaration that judgment for for a new trial security. motion on the dates as Plaintiff’s