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District Court of Appeal, Third District, California.


Civ. 6351

Decided: October 19, 1939

Johnson & Curtright, of Sacramento, for petitioner. McAllister & Johnson and O.F. Meldon, all of Sacramento, and A.C. McClellan, of Hanford, for respondent.

Petition for writ of certiorari to annul an order setting aside and vacating an order vacating and setting aside an interlocutory decree of divorce.

As alleged in the petition, the action in which the order here assailed was entered is one for divorce, commenced against petitioner by his alleged wife, upon the grounds of extreme cruelty. The issues upon the divorce complaint having been settled, the respondent court proceeded to a trial of the action, as a result of which an interlocutory decree of divorce was given, made, and caused to be entered on March 3, 1939. Petitioner thereafter, and on July 6, 1939, caused to be served and filed a notice of motion to vacate the interlocutory decree, to reopen the cause, for leave to file an amendment to this petitioner's answer in the form of a cross-complaint for an annulment of marriage, and for leave to offer evidence in support of said cross-complaint. The cross-complaint alleged, as a ground for annulment of the marriage between the parties, that at the time of said marriage plaintiff was the wife of one Paul R. Henricks, then living. This motion came on regularly for hearing, which plaintiff in the divorce case, and her counsel, and petitioner and his counsel all attended. The motion to vacate the interlocutory decree was thereupon made, and witnesses were sworn and examined, and two depositions were read in support of the motion. The matter was then argued to the court, the authorities then quoted and cited, and the motion was submitted for consideration and decision. The respondent court, upon such submission, then granted the motion, vacated the judgment, and granted leave to petitioner to file the proposed cross-complaint. Thereafter, pursuant to the leave granted, petitioner served and filed his cross-complaint, to which plaintiff answered, and upon memorandum and motion for the purpose, the cause was regularly set down for trial on the cross-complaint and answer thereto.

The cause came on regularly for trial, on the issues as thus fixed, on August 30, 1939, and the cause was tried on the issue of the validity of the marriage, and was submitted to the court on that sole issue. This trial took place without any objection whatever being made to the regularity thereof, nor to the validity of the order vacating the interlocutory decree. At no stage of the second hearing, nor at any time, was any motion or application of any kind made to vacate the order vacating said interlocutory decree, nor was any notice of any kind given to, or by either of the parties, or by the respondent court, or to anyone, that the vacation and setting aside of the order vacating said interlocutory decree was contemplated, considered, or intended. Neither was any hearing of any kind ever had at which was presented or considered the proposition of the vacation of such order.

After the submission of the cause, on September 8, 1939, and, as above pointed out, the court, without motion, notice or application, and without deciding any of the issues presented at the hearing of the cause, made its minute order vacating and setting aside the order of the 17th day of July, 1939, which last-mentioned order vacated and set aside the interlocutory decree. And it is this order nullifying the order vacating the interlocutory decree that is the subject of this application.

It is contended by petitioner that the order of the trial court setting aside and vacating its order vacating the interlocutory decree was without jurisdiction, and, should therefore be annulled by this court. This contention is based, according to the points and authorities filed, upon the ground that the original order was valid upon its face. In his points and authorities filed, petitioner made no attempt whatever to justify the action of the trial court upon statutory authority, but relies entirely upon the ground that “when the order is valid upon its face, as disclosed by an inspection of the judgment roll, its attempted nullification without notice, hearing or motion, is without jurisdiction and wholly void”. As the record and judgment roll show that the order was made only after application, motion and hearing, he contends that lack of jurisdiction does not appear. He appears to take the view that if the elements mentioned and italicized above are present, the contents and form of the application have little or no bearing upon the question. We take the view, as will hereafter appear, that lack or presence of jurisdiction must be determined by facts alleged in the application, which is part of the judgment roll. The order which the trial court set aside reads as follows:

“Upon notice heretofore duly given, made, served and filed herein, and after a hearing in open court whereat McAllister and Johnson represented plaintiff, and Johnson and Curtright represented defendant and good cause appearing therefor: It is hereby ordered, adjudged and decreed, that the interlocutory decree heretofore made and entered herein on the 3rd day of March, 1939, in Book 84, at page 574, Records of the County Clerk's Office of the County of Sacramento, State of California, be, and the same is hereby vacated and set aside, and the defendant, Arthur R. Moran, is hereby granted leave to file a cross-complaint in the above entitled action.”

The view of petitioner in respect to the right of the court to set aside a void order is thus expressed by him: “It is to be conceded that an order wholly void upon its face and requiring only an inspection of the judgment roll to demonstrate its want of vitality, may be vacated and set aside by the court without notice. (People v. Greene, 74 Cal. 400, 16 P. 197 [5 Am.St.Rep. 448]). Thus, if the order vacating the interlocutory decree itself disclosed the lack of jurisdiction in the court to make it, or, if its invalidity appears from an inspection of the judgment roll, the court, in its exercise of its inherent power over its own judgment, could properly have set the order aside of its own motion.”

We will therefore proceed upon the premise that this question of law is uncontroverted.

At the outset, it appears that several references are made by petitioner to the “judgment roll”. An examination of the records and papers certified to this court does not disclose any judgment roll as that term is defined by law. The parties seem to proceed, however, upon the assumption that the notice of motion and the order vacating the judgment constitute the judgment roll, and we will adopt that view, without so deciding. “The effect of these well settled rules is that, unless the invalidity of a judgment is apparent from an inspection of the judgment roll, the court rendering it has no power, in the absence of application made within the time specified in section 473, Code of Civil Procedure, to make any order vacating or setting aside such judgment.” People v. Davis, 143 Cal. 673, 77 P. 651.

As pointed out by respondent there are two statutory methods of setting aside and vacating a judgment. One is under the provisions of section 663 of the Code of Civil Procedure, and is based upon erroneous conclusions of law. As findings of fact and conclusions of law were waived in the instant case, the section does not apply. Furthermore, under said section the motion must be made within ten days from notice of entry of judgment. Here, the motion was made many months thereafter. The other method is under section 473 of the Code of Civil Procedure, which provides in part as follows: “The court may, upon such terms as may be just, relieve a party or his legal representative from a judgment, order, or other proceeding taken against him through his mistake, inadvertence, surprise or excusable neglect. Application for such relief must be accompanied by a copy of the answer or other pleading proposed to be filed therein, otherwise the application shall not be granted, and must be made within a reasonable time, in no case exceeding six months, after such judgment, order or proceeding was taken.”

The notice of motion reads as follows:

“To the plaintiff above named and to McAllister & Johnson, attorneys for plaintiff:

“You and each of you will please take notice that on Monday, the 17th day of July, 1939, at the hour of 10:00 o'clock in the forenoon of said day, or as soon thereafter as counsel can be heard, the defendant will move the above entitled court, before Hon. Peter J. Shields, judge of department 2 thereof, at the courtroom of department 2 of said court in the Sacramento County Courthouse, in the City of Sacramento, County of Sacramento, State of California, for an order of said court vacating and setting aside the interlocutory decree of divorce heretofore made and entered herein, and reopening said cause, and granting to defendant leave to file herein a cross-complaint, and granting to defendant leave to offer evidence in support of said proposed cross-complaint.

“Said motion will be made upon the ground that said filing herein of said cross-complaint and the taking of said evidence thereon are necessary to a complete determination of the rights of the parties to this cause, and are necessary to prevent a mistrial thereof and miscarriage of justice therein.

“Said motion will be based upon this notice, upon the proposed cross-complaint, a copy of which is served herewith, and upon all of the files, records, pleadings and proceedings heretofore had and filed in this action, upon the minutes of the court, and upon the oral and documentary evidence heretofore offered in said action and to be adduced at the hearing of said motion. Dated, July 6, 1939.”

It will be noted that there is no attempt whatever to show “mistake, inadvertence, surprise or excusable neglect”. The motion cannot be held to come under the last-named section.

In the case of United Railroads of San Francisco v. Superior Court, 170 Cal. 755–760, 151 P. 129, 132, Ann.Cas.1916E, 199, the following rule is laid down: “As was said by the late Chief Justice Beatty in Holtum v. Greif, [144 Cal. 521, 524, 78 P. 11], supra: ‘The question, then, is as to the power of the trial court to vacate an order granting or denying a new trial after it has once been regularly made and entered. The decisions of this court are numerous and uniform to the effect that a judgment or order once regularly entered can be reviewed and set aside only in the modes prescribed by statute. If they have been entered prematurely, or by inadvertence, they may be set aside on a proper showing; and, if the order as entered is not the order as made, the minutes may be corrected so as to make them speak the truth; but, subject to these exceptions, the order is reviewable only on appeal, and, the decision of the trial court having been once made after regular submission of the motion its power is exhausted, it is functus officio.’ ” (Italics ours.)

In the case of Eli Rodman v. Superior Court, etc., Cal.Sup., 89 P.2d 109, 112, the holding that failure to follow statutory procedure results in a lack of jurisdiction appears in the following language: “An examination of the numerous cases which deal with this problem impels the conclusion that some confusion exists with reference to what constitutes an excess, and what constitutes an error, in the exercise of jurisdiction. However, it seems well settled (and there appears to be no case holding to the contrary) that when a statute authorizes prescribed procedure, and the court acts contrary to the authority thus conferred, it has exceeded its jurisdiction, and certiorari will lie to correct such excess.” (Italics ours.)

Applying the foregoing rule to the case here, it appears that there was no statutory authority for the vacation of the judgment, and under the opinion in the Rodman case the act of the trial court was in excess of its jurisdiction, and therefore void.

Upon the argument of the cause, and in a supplemental list of points and authorities filed thereafter, the further contention is made by petitioner that by appearing and contesting the motion in the trial court, respondent has waived the requirement of notice, and any defect in the notice with respect to the statement therein of the grounds of the notice; jurisdiction of respondent to vacate the prior order of vacation without notice, and with respect to the jurisdiction of the court to vacate its own orders, valid on their face. In the first place we have held that the order was not valid on its face. It is the general rule that jurisdictional matters of this character cannot be waived by a litigant. “It is not within the power of litigants to invest a court with any jurisdiction or power not conferred on it by law, and accordingly it is well established as a general rule that, where the court has not jurisdiction of the cause of action or subject-matter involved in a particular case, such jurisdiction cannot be conferred by consent, agreement, or waiver. So also if the court cannot try the question except under particular conditions or when approached in a particular way, the law withholds jurisdiction unless such conditions exist or unless the court is approached in the manner provided, and consent will not avail to change the provisions of the law in this regard.” 15 C.J. 802–806, § 101. In a note to the foregoing paragraph, numerous instances are cited which show that the case here comes within the rule. The case of Hammond Lumber Co. v. Bloodgood, 101 Cal.App. 561, 281 P. 1101, does not cover waiver of jurisdiction, but merely holds that procedural matters such as want of written notice of a motion may be waived, or failure to specify all the relief asked or going beyond the terms of the notice may be waived. It was not contended that any of the omissions were jurisdictional in character. Furthermore, the only respondent here is the trial judge, and it is doubtful if he can be bound by the conduct of counsel for the litigant in the exercise of his lawful right to annul a void order upon his own motion.

The order is affirmed.

Mr. Justice TUTTLE delivered the opinion of the court.

We concur: PULLEN, P.J.; THOMPSON, J.

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