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


Civ. 13894.

Decided: December 18, 1942

Roger Marchetti, of Los Angeles, for petitioner. Jerry Giesler, Meyer M. Willner, and Thornwell Rogers, all of Los Angeles, for respondent.

The question for decision in this case is whether the court exercised its jurisdiction by dismissing an order to show cause with reference to alimony and attorney's fees.

On the 31st of August, 1942, petitioner filed her action in the Superior Court of Los Angeles County against her husband, Charles C. Lincoln, Jr., for separate maintenance and support, and for an injunction to prohibit him from disposing of his property or removing it from California, and for the appointment of a receiver to hold and manage his property for the benefit of petitioner pending a final judgment. The action was based upon the alleged adultery of defendant and upon the grievous mental and physical suffering of plaintiff alleged to have been caused by numerous and divers acts of cruelty committed by defendant. The complaint is wholly adequate; its sufficiency is not in question. It alleged that defendant owned property reasonably worth a million dollars; that his annual income was not less than $50,000, while plaintiff has neither property nor income and has been wholly dependent upon defendant since their marriage April 28, 1938. Also, it alleged that $600 per month is a reasonable sum for the support of plaintiff in accordance with her style of living as the wife of defendant.

Upon the filing of such complaint an order to show cause was issued requiring the defendant to appear on the 10th day of September, 1942, to show cause why the court should not make the order prayed for by the plaintiff. At the time fixed in the order to show cause, the defendant appeared with his counsel and filed his “motion to vacate, set aside and quash the order to show cause, and objection to hearing thereon.” The grounds alleged in his motion were:

(1) That the superior court is without jurisdiction to hear the matter by reason of dependency of another action between the parties covering the identical subject matter in the Circuit Court of Smyth County, Virginia;

(2) That the matters involved in the order to show cause are res judicata, having been made a part of a decree in equity entered on the 29th of December, 1941, in the Virginia court.

Upon the calling of the case on the calendar the judge heard defendant's motion to quash, and read the pleadings and exhibits. He thereupon stated “In the Court's opinion she submitted herself to the jurisdiction and their court has acted upon it, and the motion to dismiss will therefore be granted.” Thereupon the following proceedings were had:

“Mr. Giesler: I of course make a motion to dismiss.

“The Court: The motion to dismiss will be granted.

“Mr. Marchetti: She has become a resident of California since that time.

“The Court: That wouldn't make any difference; she can't change the jurisdiction.

“Mr. Marchetti: I have some authorities here that I would like to submit to your Honor on that subject.

“The Court: I don't think I need any authority on that question, now.

“Mr. Marchetti: I would like to read them into the record.

“The Court: Yes, you may.

“Mr. Marchetti: My motion, if the Court please, is based, this morning, upon the following grounds: a transitory action may be brought in any state where the defendant is found. 7 Cal.Jur. 596; Ryan v. North Alaska Salmon Co., 153 Cal. 438, 95 P. 862. May I give them for the record?

“The Court: Yes.”

After petitioner's counsel had cited certain authorities, the following colloquy occurred:

“Now, if the Court please, this is––has been––gone over rather hurriedly, and I feel this way, if the Court please, that probably if I could get a continuance here, I could submit a very elaborate brief to your Honor that will satisfy your Honor that you have jurisdiction here.

“The Court: I don't think so. I wouldn't change my mind. Even the authorities you have cited do not change my mind.

“Mr. Marchetti: I think that the Court should give me a few days to prepare a brief and submit it to the Court before the Court decides this important question. This is an important matter. Will your Honor give me a few days to prepare a brief and submit it?

“The Court: I don't think it would do any good.

“Mr. Marchetti: I would like to do it. If your Honor will just give me 10 days to prepare a brief, that is all I ask, if the Court please. I can complete my investigation of this question.

“The Court: No; the motion will be granted.”

Defendant's motion was based upon (1) his own affidavit and (2) an exemplified copy of all the pleadings filed and orders entered by the Virginia court. From those documents it appears that defendant had in November, 1941, in Virginia sued petitioner for divorce and that in the same proceeding on December 29, 1941, an order had been made requiring the plaintiff husband to pay the defendant wife $200 per month as alimony and $1,000 as counsel fees. He averred that with such order defendant had complied. Because of the assumption of jurisdiction of the controversy between the parties, the pendency of their action and the order pendente lite, in the Virginia court, it was urged by defendant husband that the order to show cause should be vacated.

Petitioner contends that not only was she denied a hearing of her order to show cause but that the court did not even hear, consider and decide the defendant's motion to quash. Defendant as the real party in interest contends on behalf of respondent (1) that the court did exercise jurisdiction; (2) that where a court “has jurisdiction to order a dismissal, its action is final; (3) that petitioner has an adequate remedy at law; (4) that defendant made a general appearance.”

(1) In support of his contention that the respondent court exercised jurisdiction defendant argues that mandate will not compel action on the part of a judge unless the duty to be enforced is unmixed with discretionary power or the exercise of judgment; that the only duty of the court is to try the action and render judgment. Citing Texas Co. v. Superior Court, 27 Cal.App.2d 651, 654, 81 P.2d 575; Hayward v. Superior Court, 130 Cal.App. 607, 610, 20 P.2d 348; Bauer v. Superior Court, 208 Cal. 193, 198, 281 P. 61; Hilmer v. Superior Court, 220 Cal. 71, 29 P.2d 175; Parker v. Superior Court, 16 Cal.App.2d 580, 583, 60 P.2d 1021; Thomas v. Superior Court, 4 Cal.App.2d 356, 357, 359, 41 P.2d 220; Brock v. Superior Court, 119 Cal.App. 5, 474, 5 P.2d 659. A review of these cases discloses that neither are they authority for the dismissal of the order to show cause by respondent court nor do they forbid the use of the writ of mandate to correct the order complained of. In each of them the trial court heard, read and considered the files, pleadings, records and evidence relating to the issue at bar. In some of them the pleadings were voluminous (Texas Co. v. Superior Court), in others the hearing of the testimony consumed days. Hayward v. Superior Court. In each of them facts were ascertained and the law applied. None of the trial courts whose orders are reviewed refused to perform any of the acts required of it by law.

So much cannot be said of the trial court in the instant case. It found no facts relative to the issue presented by the order to show cause. On the contrary, without requiring any notice of its intended action, it peremptorily dismissed the citation. Its act in dismissing the proceeding was as arbitrary as though neither party had ever set foot on California soil. Therefore, the court did not exercise its jurisdiction.

(2) Such orders of dismissal are void unless made in the judicial course and with regard to the right of due process. Dismissals of actions are provided for in the Code of Civil Procedure, §§ 581 et seq. Other than such dismissals judgment must be rendered on the merits in all other cases, § 582. The only instances in which discretion may be exercised in dismissing actions are those in which, after plaintiff's failure for two years to bring the action to trial due notice of defendant's motion to dismiss has been served. Reasoning by analogy, ancillary proceedings, citations, orders to show cause, motions and demurrers acquire status akin to that of the primary action. Unless appropriate proceedings be invoked to terminate them, they must be determined upon their merits. Conceding, arguendo, that a motion “to dismiss a complaint on the ground of want of jurisdiction of the subject matter amounts in legal effect to a demurrer to the complaint” we have no parallel situation before us. The court below had jurisdiction of the subject matter. The point raised by the motion to vacate the order to show cause involved a purely defensive plea which required a determination of factual issues. Its refusal to render a decision thereon was a failure to exercise jurisdiction and was not a mere judicial error. No facts were found, no law was applied. It follows that appeal would not have been an adequate remedy in the premises; that in order to enable the parties fairly to present the issues of their controversy before this court it is necessary that a judicial determination thereof first be had before the nisi prius court.

It is therefore ordered that a peremptory writ of mandate issue, commanding the respondent court forthwith to grant a hearing upon, and a determination of, the order to show cause in accordance with established procedure and the law as herein defined.

I dissent. These two rules are so well established in the jurisprudence of California that it is unnecessary to cite authorities in support thereof:

(1) A writ of mandate will not issue to require a lower court to exercise its discretion in any particular manner. It only issues to require the court to act.

(2) A writ of mandate will ordinarily not issue if the petitioner has an adequate remedy by appeal.

In my opinion both of the foregoing rules operate to prevent the issuance of the writ in the present case.

First: The trial judge did not refuse to act. The record discloses that he acted. It may be that he acted erroneously, nevertheless, he did act; and, if his act was erroneous, the error could be corrected upon an appeal.

Second: The remedy by an appeal would have been fully adequate in the instant case, and in my judgment no facts are pointed out in the majority opinion to indicate to the contrary.

For the foregoing reasons I believe the writ should be denied and the alternative writ heretofore issued should be discharged.

MOORE, Presiding Justice.

W. J. WOOD, J., concurred.

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