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District Court of Appeal, First District, Division 2, California.


Civ. 11842.

Decided: November 25, 1941

Stella Donovan, of San Francisco, for appellant. Marcel E. Cerf, Robinson & Leland, all of San Francisco, for respondent.

This is an appeal from an order granting a motion to vacate a final decree of divorce.

The record is incomplete in many respects, and we find more of the facts stated in the briefs and in the oral argument than in the certified transcript. We will endeavor to state the facts first which appear of record or which are conceded. On March 1, 1926, Rose Raps, as plaintiff, was granted an interlocutory decree of divorce from Elias Raps on the grounds of his wilful neglect. On March 4, 1927, the final decree was entered upon motion of the plaintiff's attorney. On June 12, 1938, Rose Raps died and Fanny Abrahamson was duly appointed executrix of her estate. On June 21, 1939, the defendant filed a notice of motion to set aside both decrees upon the grounds that the parties had become reconciled and were living together as husband and wife at the time of the entry of the two decrees. The motion was granted as to the final decree alone. In all the proceedings relating to the divorce Rose Raps was represented by a Mr. More, who has since deceased. It is stated by counsel, and not controverted, that at all times during the proceedings on the motion the executrix was in the state of Maryland.

The “negative” showing from the certified transcript is that at no time during the course of the proceedings was the executrix of the deceased party substituted as a party of record, and at no time was her attorney, or any other attorney, substituted for Mr. More who appeared as attorney of record in the divorce proceedings. The executrix was not served with the notice of motion, or with any other form of process as required by statute and made no written appearance or opposition to the motion. The motion was addressed to her “as executrix” and served upon her attorney in the probate proceeding. Her attorney appeared and asked for a continuance to enable her to communicate with the absent executrix, and appeared at the hearing to object to the jurisdiction. She made no opposition to the motion other than the bare statement: “I want to raise a preliminary point of law, that the court has no jurisdiction to hear this motion to set aside the interlocutory and final decrees after twelve years.” She states, and it is not controverted, that her main objection voiced at the hearing was that her client had not been served and was unable to be present because absent from the state. The reporter's transcript, which consists of but one typewritten page, contained two insertions in brackets reading: “[Discussion between counsel]” and “[Discussion between Court and counsel]”.

On this appeal the executrix founds her case on the failure to grant her her “day in court” because certain well defined statutory requirements were not followed. The respondent rests his case upon the asserted carelessness of appellant's counsel in failing to make suitable objections at the proper time. There is not the slightest doubt that the respondent had no legal right to proceed in the manner which he did, and the only foundation for the controversy on this appeal is whether the appellant should be denied her legal rights solely because of the manner in which the proceedings were conducted.

The proper method of procedure is plainly outlined in the Code of Civil Procedure. When a party to an action dies the court may allow the “action * * * to be continued” by or against his representative or successor in interest. § 385. When an attorney dies the party he represented “must, before any further proceedings are had against him” be required to appoint another attorney. § 286. There is no uncertainty in this language. If the respondent herein desired to take further proceedings in the divorce action it was necessary to have substituted a living representative of the deceased party. Section 1010 provides that service of notices and other papers may be made upon the “party or attorney”. The clear meaning of this provision is that service is good if made upon the party or attorney of record, and manifestly, if both are deceased, no valid service could be made upon either, and hence substitution of either a party or an attorney of record must be made before a valid service of notice can be had. This is so because if a party dies the relation of attorney and client terminates, if the party lives and his attorney dies, there must be a substitution under section 286.

The rule was announced in Judson v. Love, 35 Cal. 463, 468, where the court said in answer to the argument that the executor of the will may lawfully perform every act incident to his office and is therefore in the same position as any other party litigant: “Suppose this be admitted, it does not follow, that the service of the notice of intention to move for a new trial or appeal on him is effectual. * * * he is still not a party to the suit till he is made so in due form. He must be brought into the suit as a party before he can be affected by any proceedings in the suit. * * * and he must be duly notified of the fact of his being made a party before he can be affected by notices or proceedings in the action. Till he is made a party to the suit as executor, he is as much a stranger to the proceedings. * * * as if he were not the executor.” (Emphasis ours.) The rule of the case has been followed in Sheldon v. Dalton, 57 Cal. 19; Pedlar v. Stroud, 116 Cal. 461, 48 P. 371; De Leonis v. Walsh, 140 Cal. 175, 179, 73 P. 813; Scoville v. Keglor, 27 Cal.App.2d 17, 26, 80 P.2d 162; Boyd v. Lancaster, 32 Cal.App.2d 574, 578, 90 P.2d 317; Maxon v. Avery, 32 Cal.App.2d 300, 302, 89 P.2d 684; Lynch v. Bencini, 17 Cal.2d 521, 533, 110 P.2d 662.

The same rule was applied to defunct corporations, before the change in the statute, and in Crossman v. Vivienda Water Co., 150 Cal. 575, 580, 89 P. 335, 337, it was held that when the corporate entity has been dissolved it is incapable of suing or being sued in its corporate name. “It is dead, and can no more be proceeded against as an existing corporation than could a natural person after his death. There is no one who can appear or act for it, and all actions pending against it are abated, and any judgment attempted to be given against it is void. As to this, all the text writers agree, and their statement is supported by an overwhelming weight of authority.” And in the same case it was said on page 581 of 150 Cal., on page 337 of 89 P.: “If section 385, Code Civ.Proc., providing that an action does not abate by the death or any disability of a party, if the cause of action survives, is applicable to the case of a corporation, it does not authorize the continuance of the action against the corporation itself, but allows the action to be continued only against the ‘representative or successor in interest,’ brought in on motion. McCulloch v. Norwood, 58 N.Y. 562, 568. See, also, Judson v. Love, 35 Cal. 463.” By the same reasoning the authorities are in accord that any judgment or order entered against a deceased party is void on its face and that, until proper substitution is made, the court is without power to proceed. By the same reasoning it follows that a notice of motion given to the attorney of one who is not a party to the proceeding confers no jurisdiction upon the court.

Briefly the situation confronting the trial court when the motion was presented was this: The suit for a divorce was dead, the party plaintiff was dead, and the only attorney of record was dead. The case could not be revived without the substitution of a party, and the notice of motion could not be served upon an attorney until he was duly substituted for the one deceased. But, of course, though this procedure might seem burdensome, the injured party has the simple remedy of a direct suit against the executrix to set aside the decree. 9 Cal.Jur., p. 748.

The respondent relies upon McGuinness v. Superior Court, 196 Cal. 222, 237 P. 42, 40 A.L.R. 1110. It is not in point. In that case the executor of the deceased party and a legatee under the will requested leave to appear and intervene as parties to an investigation being made by the court of an alleged fraudulent decree. The record here does not disclose that any investigation was contemplated or made by the court, while the representative of the deceased party appeared to protest a hearing in her absence. The authorities holding that a special appearance will be held to be general if the party attacks the jurisdiction of both the person and subject matter are not in point. The record here discloses that the notice of motion to vacate the decree was filed on June 21, 1939, noticed for June 27th, and continued to June 29th at the request of counsel for appellant. She states, and it is not denied, that this request was based upon the fact that the executrix was in Maryland, had not been served with notice, and that she was unable to procure her attendance at the hearing, or to proceed in her absence. The request for a continuance, and the granting of two days' delay, under these circumstances, was not a general appearance waiving the substitution of parties and legal service of process. On a similar question, this court, in Chilcote v. Pacific Air Transport, 24 Cal.App.2d 32, 34, 74 P.2d 300, 301, said: “Section 1014 of the Code of Civil Procedure provides: ‘A defendant appears in an action when he answers, demurs, or gives the plaintiff written notice of his appearance, or when an attorney gives notice of appearance for him.’ The record before us does not show that the defendants answered, demurred, or filed a written appearance. Said section is not exclusive but, if other facts are relied on as showing an appearance, such facts must amount to a request for affirmative relief. Altpeter v. Postal Telegraph–Cable Co., 26 Cal.App. 705, 713, 148 P. 241. No showing is made that the defendants made such a request. They asked the plaintiff for and obtained a stipulation extending their time to plead. That fact did not constitute a general appearance. Powers v. Braley, 75 Cal. 237, 17 P. 197. They also obtained from the court an order to the same effect but such fact did not constitute a general appearance. Davenport v. Superior Court, 183 Cal. 506, 509, 191 P. 911, 913. The acts claimed to constitute a general appearance must amount to a showing of a ‘purpose of obtaining any ruling or order of the court going to the merits of the case.’ Davenport v. Superior Court, supra. Here, there was no such showing.”

Here there was no party who could appear if he desired to do so until he had been made a party as required by the code. The attorney for the executrix was a stranger to the action and came into court representing a stranger. It is clear, therefore, that upon the record before us, the court did not have jurisdiction of either the person or of the subject matter.

The order is reversed.

NOURSE, Presiding Justice.

SPENCE, J., and DOOLING, J. pro tem., concurred.

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