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District Court of Appeal, Second District, Division 3, California.


Civ. 19304.

Decided: December 16, 1952

Stephen J. Grogan and Henry N. Cowan, Los Angeles, for petitioner. No appearance for respondent. Engelhardt, Campbell & Singer and Leon I. Singer, Los Angeles, for real parties in interest.

This is an original proceeding for a writ to prohibit the superior court from taking further proceedings in an action entitled Bromberg v. Cayton, No. 547103, on the ground it has not acquired jurisdiction of Robert W. Allen, the only defendant in the action, petitioner here.

Action 547103 was filed July 12, 1948. It is for damages for personal injuries resulting from an automobile collision. The accident occurred on November 1, 1947. On July 12, 1948, a summons was issued. On December 9, 1949, an alias summons was issued. On March 25, 1952, a second alias summons was issued. On April 29, 1952, on an affidavit therefor made by the plaintiff Irving Bromberg, an order for publication of summons was made. The order stated it appeared to the court that defendant Robert W. Allen ‘resides out of California, and cannot after due diligence be found within State of California,’ and that defendant resides in Oregon. The defendant was served personally with the summons and complaint in the state of Oregon on May 3, 1952.

On May 29, 1952, the defendant appeared specially by filing a notice of motion 1) to quash the order for publication of summons on the ground it was in excess of the power of the court, and 2) to quash the service of summons on the ground the court had not acquired jurisdiction of the defendant because the action was in personam. In support of the motion, the defendant filed his affidavit which stated: 1) On November 1, 1947, the date of the accident, he was a resident of Los Angeles, California. 2) He continued to reside in Los Angeles until June 3, 1949. 3) From June 3, 1949, until September 1, 1951, he resided in Oakland, California. 4) On September 1, 1951, he moved to, and has since resided in, Oregon. 5) He registered as a voter in Oregon about May 1, 1952. 6) He has leased a home in Oregon. 7) Since removing from California to Oregon, he and his wife have resided in Portland. 8) He does not intend to return to California, and has had no such intention since moving to Oregon. 9) At the time he moved to Oregon, he transferred his business activities to that state, and ever since has conducted his business activities in and from Oregon. 10) Since he moved to Oregon, his family has resided with him there. 11) He maintains his bank account in Oregon.

In opposition to the motion, the plaintiffs filed an affidavit of a deputy sheriff of Multnomah County, Oregon, to the effect that on April 30, 1952, another deputy, in an endeavor to serve the defendant, ascertained he had left Portland the day before, stating he was going to Tillamook, Oregon, and would be at the hotel there. The defendant was served in Tillamook on May 3, 1952. At the hearing of the motion, it appeared without contradiction that at the time the order for publication of the summons was made, and at the time the defendant was served, he was a resident of, and domiciled in, the state of Oregon. The motion was denied.

In 1951, the Legislature enacted section 417 of the Code of Civil Procedure, which reads: ‘Where jurisdiction is acquired over a person who is outside of this State by publication of summons in accordance with Sections 412 and 413, the court shall have the power to render a personal judgment against such person only if he was personally served with a copy of the summons and complaint, and was a resident of this State at the time of the commencement of the action or at the time of service.'1

In order that jurisdiction be acquired over a person who is outside of this state in accordance with sections 412 and 413 it must appear by affidavit that the person on whom service is to be made resides out of the state, or has departed from the state; and on the basis of the affidavit, that an order has been made that the service be made by the publication of the summons, among other things.

The first point pressed upon us by petitioner is that the affidavit was insufficient to support the order for publication. As we have said, the order for publication was made on the grounds that defendant ‘resides out of California, and cannot after due diligence be found within State of California.’ If the affidavit on which an order for publication of summons is made is insufficient, the court does not acquire jurisdiction and the order and any judgment based on such service is void.2 If the statements in the affidavit were sufficient to warrant the conclusion that the fact was that the defendant resided out of the state at the time of the application, the order for publication is authorized under section 412.3 The affidavit on which the order was made satisfies the requirements of section 412. While it is inartificially drawn, and contains much hearsay, it clearly appears therefrom that defendant was then residing in Portland, Oregon. We conclude that the affidavit for publication of summons was sufficient to warrant the order.

Petitioner asserts section 417 does not apply retrospectively to actions commenced before its enactment. The real parties in interest say the section is procedural only, and that it is applicable to both pending and future actions. Petitioner does not question the constitutionality of section 417. In view of petitioner's position, and our conclusion, for the reasons to be stated, that section 417 does not apply retrospectively, we assume for the purpose of this opinion that it is constitutional and do not inquire into or decide that question.4

Prior to the enactment of section 417, it was impossible to acquire jurisdiction in personam of a nonresident not present in this state, or of a resident of this state while he was absent from the state.5

Section 3 of the Code of Civil Procedure reads: ‘No part of it [Code Civ.Proc.] is retroactive, unless expressly so declared.’ This rule applies to amendments.6 The words ‘retroactive’ and ‘retrospective’ are used synonymously.7 ‘A retrospective law is one which affects rights, obligations, acts, transactions and conditions which are performed or exist prior to the adoption of the statute.'8 Statutes are not given a retrospective operation unless it is clearly made to appear, either expressly or by necessary implication, that such was the legislative intent.9 In determining such intent the courts have evolved a strict rule of construction against a retrospective operation and indulge in the presumption that the Legislature intended statutes, or amendments thereof, to operate prospectively only, and not retrospectively.10 A statute should not be construed as to give it retrospective effect so as to affect pending litigation, unless a clear intent to the contrary is plainly manifest, either by express declaration or necessary implication.11

The presumption against retrospective operation does not apply to statutes relating merely to remedies and modes of procedure.12 Such statutes are not in fact retrospective; they operate only when and if the remedy or procedure is invoked, and thus, if the trial postdates the enactment, they operate in the future regardless of the time of occurrence of the events giving rise to the cause of action.13 Mr. Chief Justice Gibson, speaking for the court, in Aetna Cas. & Surety Co. v. Ind. Acc. Comm., 30 Cal.2d 388 at page 394, 182 P.2d 159, at page 162, said that ‘This reasoning, however, assumes a clear-cut distinction between purely ‘procedural’ and purely ‘substantive’ legislation. In truth, the distinction relates not so much to the form of the statute as to its effects. If substantial changes are made, even in a statute which might ordinarily be classified as procedural, the operation on existing rights would be retroactive because the legal effects of past events would be changed, and the statute will be construed to operate only in futuro unless the legislative intent to the contrary clearly appears.'14 Under the guise of a mere change of procedure or substitution of remedies vested rights may not be destroyed or the obligations of contracts impaired.15 Oftentimes the right and the remedy are so closely connected that any alteration in the remedy may adversely affect the right.16 If a statute creates a new right or obligation it will not be construed to affect remedies or procedures as to causes of action arising before its passage.17 In its final analysis, therefore, it is the operation of a statute which determines its character.18

One of the jurisdictional requirements is jurisdiction over the person.19 ‘Lack of jurisdiction in its most fundamental or strict sense means an entire absence of power to hear or determine the case, an absence of authority over the subject matter or the parties.'20 The Legislature is without power by subsequent legislation of cure defects and omissions which go to the very jurisdiction of the court to act and which make its action void.21 If originally there was a failure of jurisdiction in judicial proceedings no subsequent law can confer it.22 A statute enlarging the jurisdiction of a court will not be construed as retrospective so as to operate on pending cases.23 ‘[W]here, by reason of noncompliance with the law regulating constructive service, jurisdiction has not attached, a retroactive statute cannot cure the defect.'24 In Taylor v. Datig, 123 Cal.App.Supp. 782, 11 P.2d 98, the municipal court had no jurisdiction of the action at the time it was begun. Before the case was tried, the law was amended so that at the time of trial it was within the jurisdiction of that court. After an exhaustive review of the authorities, the court, in a scholarly opinion written by Judge Hartley Shaw, held that the amendment did not apply to pending cases, and that the municipal court did not thereby acquire jurisdiction.

A law which conflicts with a right secured by a constitutional guaranty will not be construed as retrospective.25 A vested right, as that term is used in relation to constitutional guaranties, implies an interest which it is proper for the state to recognize and protect, and of which the individual may not be deprived arbitrarily without injustice. The question of what constitutes such a right is confided to the courts.26 A vested right to an existing defense may not be destroyed by legislative enactment. To do so is in violation of the due process clause of the Fourteenth Amendment.27 As stated in McGirr v. Pritchard, 258 Ill.App. 467, 473: ‘The right to a defense to an action is as much ‘property’ within the meaning of the constitution as the right to maintain such an action itself, and to deprive a person of either, by retroactive legislation, would be to deprive that person of his property without due process of law.' A statute which permits a recovery in cases where a recovery could not have been had before, and which takes away from the defendant a defense to disprove the right of action, introduces a new policy, radically changes existing laws, and will not be construed as retrospective.28

The authorities uniformly hold that the nonresident motorist acts, and amendments thereto, providing for service of process on a nonresident absent from the state, similar to Vehicle Code, § 404, are not to be given retrospective application.29 Such cases as have arisen under statutes providing for service of process on a nonresident outside of the state, in suits on causes of action arising from activity within the state other than use of a highway, apply the same principle.30

No express provision was made in section 417 for its application to pending actions or to prior acts or omissions. A legislative intent in favor of the retrospective operation of the statute cannot be implied from the mere fact that the statute is remedial. It must be assumed that the Legislature not only had in mind the well-established rules with respect to the noneffectiveness of substituted service upon a person not within the state, but also the consequences which attached to a retrospective statute conferring jurisdiction where none had previously existed. It also must be assumed that the Legislature was acquainted with the settled rules of statutory construction, and that, if it could have done so constitutionally, it would have expressly provided for retrospective operation of section 417 if it had so intended.31

As we have said, prior to the enactment of section 417, jurisdiction in personam could not be acquired over a person by service of process outside this state. To apply the section retrospectively—to hold that a court had acquired jurisdiction in an action in personam of a person served with process outside of this state in an action pending at the time the section became effective—would be to ignore the settled principles of law we have stated. Prior to the enactment, a plaintiff had no right to maintain an action in personam against a defendant served with process outside of this state unless he voluntarily appeared, and such a defendant had an absolute defense to such an action. The section creates a new right in a plaintiff, and deprives a defendant of an existing right. Such a statute will not be construed retrospectively. Under the decisions in this state prior to the enactment of section 417, the right of a person served with process outside of this state in an action in personam, to the absolute defense of lack of jurisdiction over his person, was a substantial one, secured to him by the constitutional guaranty of due process. Retrospective application of the section would deprive a defendant of a substantial right in violation of the Fourteenth Amendment. If the section were held to be retrospective, the effect would be to give jurisdiction where it did not exist before; it would give a right of recovery where none existed before; it would infuse life, vitality, and validity into a proceeding which, without such aid, prior to the enactment of the section, would be wholly void and a nullity.

We conclude that section 417 is substantive in its effect, that its operation is prospective, and that the superior court has not acquired jurisdiction of petitioner in action No. 547103.

Petitioner suggests we should command dismissal of the action under section 581a of the Code of Civil Procedure. There is nothing before us which would warrant such an order. The motion denied was to quash the service of summons. So far as appears, the superior court has not passed on the question whether the action should be dismissed pursuant to section 581a.

Let a peremptory writ of prohibition issue prohibiting the superior court from taking further proceedings at the behest of the plaintiffs in the action entitled Bromberg v. Cayton, No. 547103, against the defendant Robert W. Allen, until he has been served with process within this state.


1.  Stat.1951, ch. 935, p. 2537. Effective September 22, 1951.

2.  In re Behymer, 130 Cal.App. 200, 202, 19 P.2d 829.

3.  Porter v. Superior Court, 30 Cal.App. 608, 611, 159 P. 222.

4.  See: Milliken v. Meyer, 311 U.S. 457, 61 S.Ct. 339, 85 L.Ed. 278, 132 A.L.R. 1357; International Shoe Co. v. State of Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95, 161 A.L.R. 1057; Mullame v. Central Hanover B. & T. Co., 339 U.S. 306, 70 S.Ct. 652, 94 L.Ed. 865; Commercial Solvents Corporation v. Jasspon, D.C.N.Y., 92 F.Supp. 20; Ace Grain Co. v. America Eagle Fire Ins. Co., D.C.N.Y., 95 F.Supp. 784; Kimbel v. Osborn, 61 Wyo. 89, 156 P.2d 279, 158 A.L.R. 1079; 21 State Bar Jour. 169, 170; 22 State Bar Jour. 261; 23 State Bar Jour. 196; 25 State Bar Jour. 287; 1951 Progress Report of Senate Interim Judiciary Committee, 37; Opinion of the Honorable William T. Sweigert, Judge of the Superior Court of the City and County of San Francisco, published in the San Francisco Recorder, June 20, 1952; Restat.—Conflict of Laws, §§ 74, 77, 79, 84; 14 So.Cal.L.Rev. 488; 37 Cal.L.Rev. 84; 40 Cal.L.Rev. 156; 23 Ill.L.Rev. 427; 13 Rocky Mt.L.Rev. 253; 8 U.Chi.L.Rev. 596; 20 Tex.L.Rev. 99; 2 Mont.L.Rev. 112; 29 Georgetown L.Jour. 784; 40 Columb.L.Rev. 724; 21 Neb.L.Rev. 336; 13 Albany L.Rev. 63; 24 Notre Dame L.Rev. 126; Annotations 126 A.L.R. 1474; 132 A.L.R. 1361.

5.  De La Montanya v. De La Montanya, 112 Cal. 101, 44 P. 345, 32 L.R.A. 82; Frey & Horgan Corp. v. Superior Court, 5 Cal.2d 401, 55 P.2d 203; Merchants' Nat. Union v. Buisseret, 15 Cal.App. 444, 446, 115 P. 58. There is dictum in Pinon v. Pollard, 69 Cal.App.2d 129, 158 P.2d 254, to the same effect.

6.  In re Estate of Whiting, 110 Cal.App. 399, 404, 294 P. 502.

7.  City of Los Angeles v. Oliver, 102 Cal.App. 299, 309, 283 P. 298.

8.  Aetna Cas. & Surety Co. v. Ind. Acc. Comm., 30 Cal.2d 388, 391, 182 P.2d 159, 160.

9.  Aetna Cas. & Surety Co. v. Ind. Acc. Comm., 30 Cal.2d 388, 393, 182 P.2d 159; Jones v. Union Oil Co., 218 Cal. 775, 777, 25 P.2d 5; Krause v. Rarity, 210 Cal. 644, 655, 293 P. 62, 77 A.L.R. 1327; Security First Nat. Bank v. Sapkin, 19 Cal.App.2d 224, 226, 64 P.2d 1097, 66 P.2d 656.

10.  Krause v. Rarity, 210 Cal. 644, 655, 293 P. 62, 77 A.L.R. 1327; 50 Am.Jur. 494, § 478.

11.  People v. Allied Architects Ass'n, 201 Cal. 428, 435–437, 257 P. 511; Montecito Co. Water Dist. v. Doulton, 193 Cal. 398, 403, 224 P. 747; State Commission in Lunacy v. Welsh, 20 Cal.App. 624, 629–639, 124 P. 974.

12.  Aetna Cas. & Surety Co. v. Ind. Acc. Comm., 30 Cal.2d 388, 394, 182 P.2d 159.

13.  Idem.

14.  Jones v. Union Oil Co., 218 Cal. 775, 777, 25 P.2d 5 [change in procedure to obtain judgment liens]; In re Cate, 207 Cal. 443, 448, 279 P. 131 [change in reinstatement procedure by enactment of State Bar act]; Pignaz v. Burnett, 119 Cal. 157, 160, 51 P. 48 [change in time of appeal].

15.  Norton v. City of Pomona, 5 Cal.2d 54, 66, 53 P.2d 952; Thompson v. County of Los Angeles, 140 Cal.App. 73, 76, 35 P.2d 185; City of Los Angeles v. Oliver, 102 Cal.App. 299, 315, 283 P. 298.

16.  Crawford, The Construction of Statutes, 586, § 287.

17.  Vanderbilt v. All Persons, etc., 163 Cal. 507, 513, 126 P. 158; 59 C.J. 1174, § 700; 50 Am.Jur. 505, § 482.

18.  See Aetna Cas. & Surety Co. v. Ind. Acc. Comm., 30 Cal.2d 388, 182 P.2d 159; Winfree v. Northern P. R. Co., 227 U.S. 296, 33 S.Ct. 273, 57 L.Ed. 518; McGirr v. Pritchard, 258 Ill.App. 467.

19.  Vasquez v. Vasquez, 109 Cal.App.2d 280, 283, 240 P.2d 319.

20.  Abelleira v. District Court of Appeal, 17 Cal.2d 280, 288, 109 P.2d 942, 947, 132 A.L.R. 715.

21.  Miller v. McKenna, 23 Cal.2d 774, 782, 147 P.2d 531; Texas Co. v. Bank of America etc. Ass'n, 5 Cal.2d 35, 43, 53 P.2d 127; People v. Van Nuys Lighting District, 173 Cal. 792, 797, 162 P. 97; Pryor v. Downey, 50 Cal. 388, 400; In re Estate of Schwartz, 87 Cal.App.2d 569, 573, 197 P.2d 223; Jones v. Walker, 47 Cal.App.2d 566, 569, 118 P.2d 299; 5 Cal.Jur. 758, § 149; 11 Am.Jur., p. 1208, § 379, p. 1212, § 382, and cases there collected.

22.  Pryor v. Downey, 50 Cal. 388, 404.

23.  Wheaton v. Superior Court, 108 Cal.App. 702, 292 P. 499.

24.  12 C.J. 830, § 307; 16 C.J.S., Constitutional Law, § 128, page 319.

25.  Miller v. McKenna, 23 Cal.2d 774, 782, 147 P.2d 531.

26.  Miller v. McKenna, 23 Cal.2d 774, 783, 147 P.2d 531.

27.  11 Am.Jur. 1207, § 378.

28.  Winfree v. Northern P. R. Co., 227 U.S. 296, 33 S.Ct. 273, 57 L.Ed. 518.

29.  Paraboschi v. Shaw, 258 Mass. 531, 155 N.E. 445; Kurland v. Chernobil, 260 N.Y. 254, 183 N.E. 380; Green v. Brinegar, 228 Iowa 477, 292 N.W. 229; Hughes v. Lucker, 233 Minn. 207, 46 N.W.2d 497; Ashley v. Brown, 198 N.C. 369, 151 S.E. 725; Hartley v. Utah Const. Co., 9 Cir., 106 F.2d 953; Schaeffer v. Alva West & Co., 53 Ohio App. 270, 4 N.E.2d 720; Sanders v. Paddock, 342 Ill.App. 701, 97 N.E.2d 600; Continental Casualty Co. v. Nelson, 147 Misc. 821, 264 N.Y.S. 560; Fritchey v. Summar, D.C.Ark., 86 F.Supp. 391; Fidler v. Victory Lumber Co., D.C.Fla., 93 F.Supp. 656; Gender v. Rayburn, 194 A. 441, 15 N.J.Misc. 704. Some of these decisions are grounded on the theory that a nonresident motorist using a highway impliedly consents to service of process and that such consent cannot be given retrospectively; others are grounded on the theory that activity within a state which gives rise to a cause of action subjects the nonresident to service of process, and that to apply such a statute retrospectively would destroy a constitutional right existing before the enactment of the statute. See: 1 Ark.L.Rev. 201. Also: Doherty & Co. v. Goodman, 294 U.S. 623, 55 S.Ct. 553, 79 L.Ed. 1097; Sugg v. Hendrix, 5 Cir., 142 F.2d 740; Restat.—Conflict of Laws, § 87.

30.  Gillioz v. Kincannon, 213 Ark. 1010, 214 S.W.2d 212; Fairclough v. Southern Pac. Co., 171 App.Div. 496, 157 N.Y.S. 862; McGirr v. Pritchard, 258 Ill.App. 467.

31.  Aetna Cas. & Surety Co. v. Ind. Acc. Comm., 30 Cal.2d 388, 396, 182 P.2d 159.

VALLÉE, Justice.

SHINN, P. J., and WOOD, J., concur.