DocketNumber: L. A. 23024, 23025
Citation Numbers: 43 Cal. 2d 677, 277 P.2d 4
Judges: Traynor, Carter
Filed Date: 12/3/1954
Status: Precedential
Modified Date: 10/19/2024
I dissent.
I do not agree that the finding of the trial court in the annulment action brought by Alberta to the effect that “the Court, therefore, makes no findings concerning the character of the property set out in the first cause of action of [Alberta’s] complaint” and the conclusion of law that “the Court, finding both parties at fault' in the purported marriage, declines for lack of jurisdiction to make any award of property alleged to be community in character,” constituted a binding determination of the property issue so as to constitute a bar to the present actions. It was, in my opinion, a specific declaration that the issue had not been adjudicated.
“There can be no doubt that the dismissal of an action or denial of relief for want of jurisdiction is not a judgment on the merits, and cannot prevent the plaintiff from sub
What the majority is saying is, in effect, this: When the trial court determined it had no jurisdiction to decide the question of property, it was really a determination on the merits that neither party was entitled to relief and therefore “tantamount to a dismissal of the respective claims of the parties with respect to their property interests.” The trial court specifically made no finding as to the character of the property. As in the Slaker case, it declined to determine the controversy for the reason that it felt it was without jurisdiction. “Whether the holding that it had no jurisdiction was sound or erroneous is not a question for consideration here. The essential point is that there was no adjudication
Before the trial court could reach any conclusion with respect to the respective property interests involved, it had first to determine the character of the property. This it did not do. That no determination was in fact made is borne out by the language used in the conclusion of law wherein comment is made concerning the “alleged” community character of the property. As we said in Stark v. Coker, 20 Cal.2d 839, 840, 843 [129 P.2d 390], “While it is true that as a general rule a judgment is a bar as res judicata not only as to a subsequent action on the same matter actually determined, but also as to all issues that might have been litigated as incident to or essentially connected with the subject matter of the litigation and every matter coming within its legitimate purview (Code Civ. Proc., §§1908, 1911; 15 Cal.Jur. 142 et seq.), it is also true that that only is adjudged in a former judgment which appears upon its face to have been adjudged or which was actually and necessarily included therein or necessary thereto. (Code Civ. Proc., § 1911.) And when it affirmatively appears that an issue was not determined by the judgment, it obviously is not res judicata upon that issue. A judgment is not an adjudication as to matters which the court expressly refrains from determining. (Watson v. Poore, 18 Cal.2d 302 [115 P.2d 478] ; 15 Cal.Jur. 150.)” (Emphasis added.)
If we were not faced with the specific finding that no determination was made as to the character of the property, the position taken in the majority opinion might be entitled
It is my view that the majority opinion is clearly in conflict with the rule set forth in Freeman on Judgments (supra) and Slaker v. McCormick-Saeltzer Co., supra, as well as Stark v. Coker, supra. The rule announced in the majority opinion extends the doctrine of res judicata beyond its intended scope in that a majority of this court there concludes, in the face of a clear statement by the trial court to the contrary, that an issue was finally determined so as to constitute a bar to a second action. The logical result of the conclusion reached by the majority is to deprive the plaintiff in such an action of his day in court.
I would affirm the judgments.
Shenk, J., and Schauer, J., concurred.
Respondent’s petition for a rehearing was denied December 29, 1954. Shenk, J., Carter, J., and Schauer, J., were of the opinion that the petition should be granted.