Gray v. Hall ( 1928 )

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, 61 Cal.App. 724 [215 P. 914].) Plaintiff thereafter pursued the suggested course and filed an amended complaint. The defendant Yarbrough filed a demurrer thereto, which was overruled on September 17, 1923. Notice of the entry of the order overruling the demurrer having been waived the defendant, Yarbrough, was given ten days within which to answer. He failed to answer within the time allowed and his default was entered on September 29, 1923, by the respondent herein, as county clerk of Sacramento County. Judgment thereon was entered April 1, 1924, in favor of the plaintiff, Gray. The judgment so entered, after referring to Yarbrough's failure to file an answer to the amended complaint, decreed that "by reason of the law and the premises aforesaid it is ordered, adjudged and decreed . . . that the judgment which defendant Yarbrough obtained against . . . F.W. Herbert . . . for the sum of . . . $1573.37 in the superior court of Placer county, California, on the 2nd day of May, 1921, as described in plaintiff's second amended complaint, was obtained by defendant Yarbrough as trustee for, and for the benefit of, plaintiff, and said judgment has inured to the benefit of and now belongs to said plaintiff, and that said P.L. Yarbrough never had any interest therein or right thereto; that defendant P.L. Yarbrough be and he is hereby required to make and execute the necessary transfers and assignments to convey and transfer said judgment to plaintiff, and in the event of the neglect or failure of said P.L. Yarbrough to assign and transfer said judgment to plaintiff, the clerk of this court be and he is hereby directed to make the necessary transfer and assignment thereof to this plaintiff." This judgment is in full force and effect, for it has never been appealed from, vacated, or set aside. Yarbrough, after notice and demand served, refused to abide by the mandatory provisions of said judgment and has neglected to execute an assignment or transfer, as directed, in favor of Gray of the judgment entered in the case of Yarbrough v. Herbert. Proof of such demand and refusal was filed with the respondent county clerk and demand made upon him to cause the transfer of said judgment. His refusal to act in the premises led to the institution of this mandamus proceeding to compel him to make such transfer in accordance with the provisions of the judgment entered in Gray v. Yarbrough. The lower court denied petitioner's application and refused to issue a writ of mandate, whereupon this appeal was taken.

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 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, 90 Cal. 49, 60, 61 [27 P. 40, 43], however, correctly interprets these decisions and declares: "It has been said in a number of cases that an amended pleading supersedes the original; but I think a careful examination of those cases will show that it was only intended todecide that the amended pleading superseded the original for certain specified purposes, and only to the extent of the amendment. Beyond this, whatever may have been said is meredictum. But in none of the cases has it been even said that the original is not a part of the judgment roll; nor has it been decided that an original complaint is superseded for the purposes of showing when the action was commenced, and whether or not a new or different cause of action was introduced by the amendment. For the purpose of determining these questions, and perhaps others that may arise, which often become material on appeal, the amended complaint can by no possibility supersede the original." With this declaration before us we have examined both the original complaint and the amended complaint filed in the case ofGray v. Yarbrough and have concluded that the allegations and cause of action found in each are substantially identical. We have failed to find any material alteration in the cause of action as alleged in the amended complaint. Under these circumstances the question immediately confronting us is whether Yarbrough's answer putting in issue the material allegations of the original complaint was available to him, in the absence of a supplementary or amended plea, as an answer to the amended complaint. If this question be affirmatively disposed of it will necessarily follow, as contended for by respondent, that Yarbrough's default in the case of Gray v. Yarbrough was improperly taken.

[1] It has been generally held that where a plaintiff amends his declaration or complaint so as to change the cause 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, 170 Cal. 357, 360, 361 [149 P. 811];Brock v. Martinovich, 55 Cal. 516; Fox v. Hale Norcrossetc. Co., 5 Cal. Unrep. 980 [53 P. 32, 40, 41]; Ermentraut v. American Fire Ins. Co., 63 Minn. 194 [65 N.W. 270]; Kelly v. Bliss, 54 Wis. 187 [11 N.W. 488, 490]; Yates v. French,25 Wis. 661, 663-665; Kuhuke v. Wright, 22 Kan. 325, 327;Cohen v. Hamill, 8 Kan. 621; 3 Freeman on Judgments, 5th ed., 2640, sec. 1268a; 1 Ency. of Pl. Pr. 628, and authorities there cited.)

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 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; 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 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,144 Cal. 767, 769 [78 P. 259].) But, because of the importance of the question involved in its relation to our method of pleading, we deemed it advisable to do so, with the result already announced.

[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, 133 Cal. 379, 385 [85 Am. St. Rep. 207, 65 P. 880]; Rountree v. Montague, 30 Cal.App. 170, 178 [157 P. 623].) The court having acquired jurisdiction of the subject matter and of the parties, its judgment is not void for the mere erroneous decision on a question of law, however important that question may have been in contemplation of the rights of the parties in the original action. A judgment is never absolutely void if the court had jurisdiction of the subject matter and the person of the defendant, no matter how erroneous it may be. (Mayo v. AhLoy, 32 Cal. 477, 480 [91 Am. Dec. 595]; Crew v. Pratt,119 Cal. 139, 151 [51 P. 1099].) The manner of exercising its jurisdiction cannot make void the action of the court. (Cloud v. El Dorado County, 12 Cal. 128, 133 [73 Am. Dec. 526].) Neither will such judgment be in the least affected because its impotency appears from the judgment-roll. (Wood v. Jordan,125 Cal. 261, 262 [57 P. 997]; Rountree v. Montague,supra.) In 1 Freeman on Judgments, fifth edition, paragraph 360, the author says: "The character and scope of the issue upon collateral attack have already been defined. Jurisdiction appears to be the keynote of every such controversy. Efforts to avoid the judgment must be directed to proving a want of power in the court rendering it. Upon this point the cases are clear. They emphasize the difference between an absence of jurisdiction and the irregular or erroneous exercise of it. The line which distinguishes the two is very definite and is precisely that which denotes the cases where a judgment is reversible only or, on the other hand, may be declared a nullity when interposed collaterally. Consequently it is a firmly established rule of the law of collateral attack that once jurisdiction of the subject matter and the parties is acquired, no errors or irregularities in the subsequent proceedings which do not induce a loss of such jurisdiction will avail to defeat the judgment." Jurisdiction has often been said to be "the power to hear and determine." It is in truth the power to do both or either — to hear without determining or to determine without hearing. (Ex parte Bennett, 44 Cal. 84, 88.) It has even been held that a judgment ordered without a trial cannot be attacked collaterally. (Johnston v. San FranciscoSav. Union, 75 Cal. 134, 139 [7 Am. St. Rep. 129, 16 P. 753].)

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, 185 Cal. 509, 513 [197 P. 334].) Where jurisdiction has attached any irregularities thereafter occurring merely render the judgment erroneous or voidable. (Estate of Newman, 75 Cal. 213, 220 [7 Am. St. Rep. 146, 16 P. 887]; May v. Hatcher, 130 Cal. 627, 629 [63 P. 33]; 1 Freeman on Judgments, 5th ed., par. 321 et seq.) The case of Endowment Department etc. v. Harvey, 6 Ala. App. 239 [60 So. 602, 604], presented a situation somewhat similar to the one before us in the instant proceeding, in that a default judgment was improperly entered against the defendants therein while demurrers were on file and undisposed of. In that case the court held that, while the entry of such judgment was erroneous and voidable, yet the judgment was not void. InChehalis Coal Co. v. Laisure, 97 Wn. 422 [166 P. 1158, 1160], a default judgment was erroneously entered pending the disposition of a motion in the cause. After pointing out that the lower court had properly secured jurisdiction of both the person and subject matter, the opinion declared that "If through fraud or concealment practiced upon it, or through inadvertence or mistake, it thereafter entered a judgment prematurely or while a motion was pending undisposed of and without notice, the judgment was irregularly entered. It was voidable, not void." In Estateof Newman, supra, judgment was rendered upon default entered before the time allowing the defendant to answer had expired. This court held that it was error simply, not void, and could be attacked only on motion or by appeal. In a much earlier case, in which the judgment was attacked collaterally upon the ground that the defendant, although served with process, was not given the time allowed by law to appear and answer, Mr. Chief Justice Murray said: "There can be no controversy upon the proposition that a personal judgment of a court of general jurisdiction is invalid for the purpose of acquiring any rights under it, when it appears affirmatively on the face of the record that the court had acquired no jurisdiction over the person of the defendant. There is, however, a very decided distinction between want of jurisdiction and irregularity in procuring jurisdiction. In the latter case some of the authorities speak of it as want of jurisdiction, but when so employed it is a loose and improper use of the term." (Whitwell v. Barbier, 7 Cal. 54, 63; see, also,Peck v. Strauss, 33 Cal. 678, 685.) Such "loose and improper use of the term" will be frequently found in decisions in cases involving direct attacks on judgments which are there termed "void," when they are only "voidable."

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, 84 Cal. 607, 608 [24 P. 311].) But it is a fundamental principle, everywhere prevailing, that where a court has jurisdiction of the person of the parties and the subject matter of the controversy submitted to it by them, its judgment thereon cannot be impeached collaterally or otherwise than by some form of direct attack, although it may appear on the face of the record that error was committed by the court in determining the question. (Cellulose Package Mfg. Co. v. Calhoun,166 Cal. 513, 515 [137 P. 238]; Le Mesnager v. Variel, 144 Cal. 463, 465 [103 Am. St. Rep. 91, 77 P. 988].) If it were the rule that judgment in every case in which it appeared on the face of the record that error was committed by the court rendering it is subject to collateral attack the doctrine of the finality of judgments would become a myth. This court long ago considered the precise question we are now discussing, and said: "If, after acquiring jurisdiction of the parties and subject matter of an action, a superior court should order judgment in favor of one of the parties without a trial, that judgment would neither be ``without or in excess of the jurisdiction of such tribunal,' although it might be erroneous, as any judgment might be if rendered upon the naked pleadings in a case where the pleadings raised a material issue." (Clark v. Superior Court, 55 Cal. 199, 200.)

[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, 95 U.S. 714 [24 L.Ed. 565]); "and when secured by the law of the state the [federal] constitutional requirement is satisfied." (Leeper v. Texas, 139 U.S. 462, 468 [35 L.Ed. 225, 11 Sup. Ct. Rep. 577, see, also, Rose's U.S. Notes].) A state cannot be deemed guilty of a violation of the federal constitutional provision relating to due process because one of its courts, while acting within its jurisdiction, has made an erroneous decision. (Arrowsmith v. Harmoning, 118 U.S. 194 [30 L.Ed. 243, 6 Sup. Ct. Rep. 1023].) Any irregularities in procedure are matters for the consideration of the judicial tribunal within the state empowered by the law of the state to review and correct error committed by the courts. (Iowa Central Ry. Co. v. Iowa, 160 U.S. 389, 393 [40 L.Ed. 467, 16 Sup. Ct. Rep. 344].) Due course of law under the state constitution and due process of law under the federal constitution mean the same thing. (Griggs v. Hanson,86 Kan. 632, 634 [Ann. Cas. 1913C, 242, 52 L.R.A. (N.S.) 1161, 121 P. 1094].) It is the right of a litigant to have his cause tried and determined under the same rules of procedure that are applied to other similar cases, and when this is afforded to him he has no ground to complain that due process of law is not being observed. (Estate of McPhee, 154 Cal. 385, 390 [97 P. 878].)

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,80 N.H. 530 [120 A. 76]; Bonney v. McClelland, 235 Ill. 259, 261 [85 N.E. 242].) The notice essential to due course and process of law is the original notice whereby the court acquires jurisdiction, and is not notice of the time when jurisdiction, already completely vested, will be exercised. The court having once acquired jurisdiction, "however wrong the result of the proceeding may be, missteps occurring in the course of it constitute irregularities and errors in procedure and . . . cannot be conjured into anything graver by the use of impressive and high-sounding characterizations." (Griggs v. Hanson,supra; Cramer v. Farmers' State Bank, 98 Kan. 641 [158 P. 1111].) Whether notice of subsequent proceedings, after the court has acquired jurisdiction by original process, will or will not be required is a matter of legislative discretion. After jurisdiction has attached, the party has no constitutional right to demand notice of further proceedings. (Estate of McPhee,supra; Brown Bennett v. Powers, 146 Iowa, 729, 732 [125 N.W. 833]; Savage v. Welch, 246 Mass. 170, 184 [140 N.E. 787].) If the defendant in the original action was entitled by statute or rule of court, to notice of the entry of default and application for the judgment, want of such notice does not render the judgment void. (Egan v.Sengpiel, 46 Wis. 703, 709 [1 N.W. 467].)

[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.