Hamblin v. Superior Court

This is an application for a writ of mandate to compel the respondent court and the respondent judge thereof to proceed with the hearing and determination of a certain contempt proceeding now pending before it, the object of which is the enforcement of the provisions of an interlocutory decree heretofore rendered by said court in a suit for divorce. The facts are undisputed and the matter is submitted for determination upon the allegations of the petition and a general demurrer thereto. Petitioner herein is the plaintiff in whose favor the interlocutory decree above mentioned was rendered in the divorce action. The defendant therein, who was personally served with summons, defaulted, and, his default having been regularly entered, the cause was thereafter assigned to and set for hearing before Department 28 of the superior court of Los Angeles County, sitting at the city of Long Beach, in said county, and was there heard on the day set, at which time and place an interlocutory decree of divorce was ordered by the court in favor of plaintiff, with provision therein for the payment by defendant to plaintiff of certain alimony and suit money. An interlocutory decree in accordance with this order was there

[1] This contention on respondent’s part is in the nature of a collateral attack upon the judgment (Howe v. Southrey, 144 Cal. 767 , 769 [ 78 Pac. 259 ] ; see, also, Crim v. Kessing, 89 Cal. 478 , 484 [ 23 Am. St. Rep. 491 , 86 Pac. 1074 ]), and the question to be determined upon this proceeding, therefore, is whether the judgment so rendered is wholly void or merely erroneous. Respondent suggests that this question has already been determined in and by the two cases first above cited. It is true that those cases, being proceedings in habeas corpus, were in the nature of collateral attacks upon the proceedings then pending before the superior court at Long Beach (15 Cal. Jur., p. 46), and the granting of the writ therein might therefore be regarded as an implied adjudication that the court proceedings thus attacked, were void. But neither of said cases expressly so holds, and it does not appear to have been the intention of the court in either case to decide this particular question. There was no controversy upon this question in the Seiler case, either in the briefs of counsel or at the hearing. The petitioner therein asserted that the statute purporting to authorize the sessions of the court at Long Beach was unconstitutional and

[3] The general rule is that the elements of time and place are as essential to the valid functioning of a court as is the presence of the duly constituted judicial officers (White County Commrs. v. Gwin, 136 Ind. 562 [ 22 L. R. A. 402 , 36 N. E. 237 ]; State v. Atherton, 19 Nev. 332 [ 10 Pac. 901 ] ; Lewis v. City of Hoboken, 42 N. J. L. 377 ; In re McClaskey, 2 Okl. 568 [ 37 Pac. 854 ]; In re Lawyers’ Tax Cases, 55 Tenn. 565 , at 650; Levey v. Bigelow, 6 Ind. App. 677 [ 34 N. E. 128 ]; 15 Cor. Jur. 895; 7 R. C. L. 992). This rule is well stated in White Comity Commrs. v. Gwin, supra, as follows: “A court is an instrumentality of government. It is a creation of the law, and in some respects it is an imaginary thing that exists only in legal contemplation, very similar to a corporation. A time when, place where, and the persons by whom judicial functions are to be exercised are essential to complete the idea of a court. It is its organized aspect with all these constituent elements of time, place and officers that completes the idea of a court in the general legal acceptation of the term. ’ ’

When we come to consider the effect upon the validity of the proceedings of the absence of one of these constituent elements, as to whether the proceedings are thereby rendered void or merely erroneous, we find no uniformity of decision.

It is to be noted that in the case here under consideration, the only thing that was done by the court at an unauthorized place was the hearing of testimony. The complaint was duly filed at the clerk’s office at the county seat. The summons was issued therefrom, was personally served, and was returned with proof of service thereto and filed therein. The default of the defendant was duly entered and noted by the clerk at his office at the county seat. The case was set for hearing by the presiding judge sitting at the county seat and by him assigned to the department sitting at Long Beach. The decision, consisting of the findings, conelusions, and judgment, signed by the judge, was filed in the clerk’s office at the county seat and there entered in the judgment record. The only defect in the proceeding, therefore, consists in the

This court in its early decisions applied with great strictness the rule which requires the concurrence of the elements of time, place, and judicial officers to render valid a judgment or order which under the law could be made only by the court. In Smith v. Chichester, 1 Cal. 409 , a judgment of the district court which was rendered in vacation between two terms of court was held invalid. In Wicks v. Lugwig, 9 Cal. 173 , and in Bates v. Gage, 40 Cal. 183 , judgments rendered under similar circumstances were held to be void. In Larco v. Casaneuava, 30 Cal. 560 , where, in an action pending in San Mateo County, the trial judge, while sitting in chambers in the city and county of San Francisco, heard and acted upon a motion to strike out defendant’s demurrers as sham, this action was held to be error, but the judgment for plaintiff was, nevertheless, affirmed. In Norwood v. Kenfield, 34 Cal. 329 , where the trial judge made an order at chambers continuing the trial of a case to a time in vacation between terms of court, and held the trial at that time over the objection of defendant, this court held that the judge at chambers had no authority to make such order and that the order so made and the trial so held in vacation pursuant thereto were void. It may be that the strictness with which the rule was applied in those early cases was one of the considerations which moved the framers of the constitution of 1879 to abolish terms of court and to provide that the superior court “shall always be open (legal holidays and nonjudieial days excepted) ...” (art. VI, sec. 5). However this may be, the strictness of the early rule was abrogated and the early cases above cited (though not mentioned therein) were in effect overruled in 1872 in the case of Ex parte Bennett, 44 Cal. 84 . This case is very nearly on all-fours with the case at bar. It also involved a contempt proceeding, the object of which was the enforcement of a decree of divorce. It, however, was not a default case, but one in which an answer had been filed raising issues of fact. By consent of the parties it was set for hearing before the judge at chambers in vacation between terms of court and was so heard and decided, and judgment was rendered in vacation and entered nunc pro tunc as of the preceding term

“The principal objection made for the petitioner, as we understand it, is/that the cause was tried at chambers, and not in open Court; and it is said that there is no authority to try a cause except in open Court.

“But even if this be so, we do not see that it would follow that a judgment rendered in a cause which had been tried at chambers would for that reason necessarily be void in the absolute sense.

“The District Court in Sonoma unquestionably had jurisdiction of the subject matter and of the parties litigant. Had the Court itself rendered the judgment in question in open session at a regular term, without trial, without proof, and even without submission of the cause for decision, such judgment, however erroneous, would not be held void upon a mere collateral attack. To maintain that it would, would be to ignore the obvious distinction between a total want of authority upon the one hand, and the erroneous exercise of conceded authority upon the other. . . .

“The hearing of proofs, the argument of counsel—in other words, the trial had, or the absence of any or all of these—• neither confer jurisdiction in the first instance, nor take it away after it has once fully attached.”

The eases of Johnston v. San Francisco Sav. Union, 75 Cal. 134 , 139 [ 7 Am. St. Rep. 129 , 16 Pac. 753 ], Beaulieu Vineyard Co. v. Superior Court, 6 Cal. App. 242 , 248, 250 [ 91 Pac. 1015 ], Dahlgren v. Superior Court, 8 Cal. App. 622 , 626 [ 97 Pac. 681 ], People v. Maljan, 34 Cal. App. 384 [ 167 Pac. 547 ], and McGrath v. Langford, 35 Cal. App. 215 [ 169 Pac. 424 ], also lend support to the conclusions there reached. The case last cited is quite in point here. In that case a demurrer to the complaint filed in the justice’s court was set for hearing at 3 o’clock P. M. on a Saturday, which was a nonjudicial day (Code Civ. Proc., secs. 10, 133, 134). The demurrer was heard and overruled at that time in the absence of the defendant, It was held that this action was

[6] It must be conceded that the "department of the superior court while sitting at Long Beach was not regularly functioning as a court. The result is that the evidence so heard by it was in effect heard by the judge “in chambers.” Under the rule adhered to in the later decisions of this state this circumstance does not render the judgment void. It was undoubtedly erroneous and might have furnished ground for a reversal of the judgment upon appeal, unless the suffering of default by the defendant be deemed a waiver of his right to object to such irregularity or be regarded as a consent thereto. It was a violation of the mandate contained in section 130 of the Civil Code requiring proof of the facts alleged to be “taken before the court.” But we are satisfied that this requirement, though mandatory, is not jurisdictional. The provision of section 128 of the Civil Code, forbidding the granting of a divorce unless the plaintiff has been a resident of the state and of the county for the time specified, is of a similar character. This requirement has sometimes been spoken of as-“jurisdictional” (Flynn v. Flynn, 171 Cal. 746 [ 154 Pac. 837 ]; Gould v. Gould, 188 Cal. 505 [ 205 Pac. 1072 ]). But it has never been so decided, so far as we are advised, in any case wherein that question was actually involved. In the cases in which this question has been actually involved and decided it has been held that this requirement is not jurisdictional and that the failure to comply with it is nothing more than error in the exercise

It may be suggested that we are not “entitled to assume upon the record herein that the court in the divorce action did fail to comply with the requirements' of section 130. These requirements are in the alternative, that the court require proof of the facts alleged, either “taken before the court” or “upon written questions and answers.” It is nowhere alleged herein that the proofs taken herein were not taken upon written questions and answers. [7] Upon an appeal from a judgment all intendments and presumptions are in support thereof, and this rule applies a fortiori in cases of collateral attack upon a judgment. But we are satisfied, for the reasons above indicated, that 'a failure to comply with the requirements of this section would not render the judgment void. In our consideration of the ease thus far we have assumed as a fact that the judgment under consideration is subject to the defects which we have been discussing, but it is to be doubted that such assumption is justified by the record herein. [8] The general rule is that-a judgment of a court of record cannot be collaterally assailed unless it is void on its face (15 Cal. Jur., p. 45). This rule applies equally to a judgment of divorce (9 Cal. Jur., p. 750). A judgment of a court of record is not void upon its face unless the defects which render it void are apparent upon an inspection of the judgment-roll (Estate of McNeil, supra). It nowhere appears from the record herein that the defects that we have been here considering are apparent from an inspection of the judgment-roll, nor does it seem probable that they would so appear. On the contrary, it seems most probable that an inspection of the judgment-roll in the divorce action would disclose no defect whatever therein.

It is our conclusion that upon the showing here -made the judgment in question cannot be said to be void, and it must, therefore, be deemed to be valid for the purposes of this

Lennon, J., Lawlor, J., Seawell, J., Shenk, J., Richards, J., and Waste, J., concurred.