SCHLYEN v. SCHLYEN

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

SCHLYEN et al. v. SCHLYEN.*

Civ. 19324.

Decided: November 20, 1953

Samuel W. Blum and M. Seaton Cohen, Los Angeles, for appellants. Benjamin Elconin and Max Bergman, Los Angeles, for respondent.

Plaintiffs appeal from a judgment of dismissal rendered April 9, 1952, vacating and setting aside a prior judgment rendered herein, and dismissing the action ‘for lack of jurisdiction of the subject matter.’

The action is one in equity brought by plaintiffs, through their mother as guardian ad litem, as the minor children and heirs-at-law of David Schlyen, deceased, against defendant, the third wife of decedent, individually, as the remaining heir-at-law of decedent. The purposes of the suit are to cancel two joint tenancy deeds executed by David Schlyen, dated May 28, 1948, purportedly conveying certain real property to decedent and defendant as joint tenants, upon the ground that the same were procured by defendant's undue influence and fraud, and also to have such real property restored to decedent's estate and administered therein according to law.

The dismissal was granted upon defendant's sole contention, that since defendant at the commencement of this action was the special administratrix of decedent's estate, although not sued herein as such, the court of equity had no jurisdiction of the subject matter and was thus precluded from granting any relief. She made such demand notwithstanding the action was by heirs of decedent against a co-heir, the title of the property involved had been in joint tenancy, had constituted no part of decedent's estate, and defendant had appeared and contested the action solely in her individual capacity and claimed the property as her own, adversely to the estate and the plaintiffs as heirs.

The question of jurisdiction was first urged on February 9, 1951, in defendant's opposition to plaintiffs' motion to dismiss a prior appeal (Schlyen v. Schlyen, 102 Cal.App.2d 742, 228 P.2d 55).

This is the sole question necessary for us to determine:

Did the trial court commit prejudicial error in granting the motion to dismiss for lack of jurisdiction for the reason that in a prior appeal the appellate court necessarily determined that the trial court did have jurisdiction over the subject matter of the instant action, which determination became the law of the case?

Yes. David Schlyen died October 5, 1948, leaving surviving him as his sole heirs, plaintiffs, his two minor children, and defendant, his third wife, whom he had married September 3, 1943. On May 28, 1948, shortly before his death, he executed two joint tenancy deeds purportedly conveying certain valuable real property, consisting of his sole and separate property, to himself and the defendant as joint tenants.

After decedent's death, defendant filed a petition for probate of his alleged will, dated April 20, 1945, wherein defendant was named executrix and was given decedent's entire estate, except $1.00 which was given to each of the plaintiffs. Plaintiffs, by their mother as guardian ad litem, filed written objections to the probate and contest of said will, alleging (1) improper execution of the will; (2) unsoundness of mind of decedent; (3) undue influence exercised by defendant, and (4) fraud exercised by defendant. Pending said contest defendant was appointed special administratrix of decedent's estate.

On April 28, 1949, and before the trial of the will contest, plaintiffs, as heirs at law of decedent, commenced the present action against defendant, individually, and as decedent's only other heir at law, to cancel the two joint tenancy deeds above mentioned and to restore said real property to decedent's estate to be administered according to law. Defendant appeared and answered the complaint solely in her individual capacity.

On June 24, 1949, by stipulation this action and the will contest were consolidated for trial before a jury, the stipulation providing for separate verdicts and judgment, the verdict in this action to be advisory only, with the final determination to be made by the court, and that the same evidence was to apply to both cases, so far as applicable, under their respective pleadings.

Trial of this action and the will contest was had. On October 13, 1949, the jury, in response to special interrogatories, found that the joint tenancy deeds were procured through the undue influence and fraud of defendant. On December 14, 1949, the court adopted the jury's findings and made and filed its written findings of fact and conclusions of law in accordance with the allegations of plaintiffs' complaint and signed and filed its judgment herein, by which the two joint tenancy deeds were cancelled, and the real properties therein described were restored to and declared a part of decedent's estate, subject to the administration thereof. The judgment further ordered defendant to account for all rents, issues and profits obtained from said real property from decedent's death to said accounting, and directed said sum, so ascertained, to be turned over to the then legally appointed and qualified representative of decedent's estate, to be administered therein according to law. The court further retained jurisdiction for the purpose of such accounting, to make further necessary orders in connection therewith, and to render a judgment in connection with such accounting.

On January 6, 1950, defendant appealed from the aforesaid judgment and the cause came on for hearing before the District Court of Appeal. On January 25, 1951, plaintiffs, as respondents therein, filed a notice of motion to dismiss said appeal upon the ground that the judgment was interlocutory and not final, and hence not appealable. A few days before the hearing, defendant filed a memorandum in opposition to said motion and for the first time arised the question of jurisdiction, asserting that the trial court had no jurisdiction over the subject matter of this action and therefore could not require defendant to render any accounting, and urged that said judgment was null and void. During the oral argument on said motion the question of jurisdiction was raised both by the appellate court and by defendant's counsel.**

On March 8, 1951, the appellate court granted plaintiffs' motion to dismiss the appeal, saying in part: ‘Motion to dismiss appeal. The judgment from which an appeal was attempted annulled two joint tenancy deeds and restored and declared to be a part of the estate of David Schlyen, deceased, the real property described therein. It further ordered defendant and appellant, Alice Harriet Schlyen, to account for all rents, issues and profits of the real property from October 5, 1948 and to turn over the same to the representative of the estate of said decedent. The judgment also provided: ‘* * * and the court, upon such accounting, shall grant such other and further relief and make such other and further order as may be just and proper in connection therewith. The above entitled Court shall and hereby does retain and maintain continuing jurisdiction of the above entitled action, and of all of the parties hereto for all purposes in connection with such accounting, and the taking, the rendition, and the enforcement thereof, and to make such other and further order or orders in connection therewith as may be necessary and proper and to render a judgment in connection with such accounting.’ The ground of the motion to dismiss is that the judgment was interlocutory and not final, and hence is not appealable. The motion should be granted. Further judicial action will be required in the ascertainment of the amount due, if any, upon a just accounting and in the rendition of a money judgment therefor. All matters determined by the judgment will be reviewable on appeal from a final judgment when the same is entered. (David v. Goodman, 89 Cal.App.2d 162 (200 P.2d 568).)' [102 Cal.App.2d 742, 228 P.2d 55.]

On May 3, 1951, defendant's petition for a hearing by the Supreme Court was denied.

In defendant's written opposition to plaintiffs' motion to dismiss the appeal in Schylen v. Schlyen, 102 Cal.App.2d 742, 228 P.2d 55, defendant first raised the question of jurisdiction of the trial court in this action and asserted that the accounting provisions of said judgment were null and void and should be disregarded as a nullity. Defendant therefore asserted that the judgment was final and appealable, even though the judgment in its entirety was void for lack of jurisdiction. Her entire argument was predicated upon the claim that the court of equity was without jurisdiction and that the probate court had exclusive jurisdiction in this action. This position was maintained upon oral argument, defendant's counsel stating, among other things, ‘I indicated in my memorandum and cited three cases in point in which it was directly held that the entire judgment would be void.’ Defendant attempted to partially withdraw from the court's consideration the issue of the invalidity of the entire judgment by asserting ‘this is not the time to argue the validity of the entire judgment—that would be an issue on the main appeal.’ Such attempt, however, could not withdraw the issue of jurisdiction that was then squarely before the appellate court and it did not and cannot prevent the operation of the rule of ‘the law of the case’ since the asserted invalidity of the interlocutory provisions of the judgment, to wit, a total lack of jurisdiction in the trial court, if correct, would have permeated not only the accounting provisions of the judgment but also the entire judgment itself.

If, under defendant's argument, the interlocutory provisions were null and void, then for the same reason the entire judgment was null and void for it took the same jurisdiction to render the accounting provisions as it did to render the entire judgment. If, as defendant claimed, the record before the appellate court disclosed that the entire judgment was void, the appellate court on the motion to dismiss had the absolute duty to consider that point. Lack of jurisdiction of the trial court may be raised at any time, at any stage of the proceedings, including a motion to dismiss, and it is the duty of the court, irrespective of the wishes of the parties, when the point is raised as to the lack of jurisdiction at any stage in the proceedings to consider and pass upon such question. (In re Fox West Coast Theatres, D.C.S.D.Cal., 25 F.Supp. 250, 256[1]; Fitzpatrick v. Sonoma County, 97 Cal.App. 588, 593[3], 276 P. 113; In re Estate of Palmieri, 120 Cal.App. 698, 700[2], 8 P.2d 152; see also cases cited in 14 West's California Digest (1951), p. 329, Courts, k39.)

Obviously this court in Schlyen v. Schlyen, supra, rejected defendant's contention in toto for it upheld the validity of the accounting provisions, thereby rendering the judgment interlocutory and of necessity upholding the validity of the entire judgment on jurisdictional grounds. The court in its opinion obviously passed upon the contention adversely to defendant that the trial court did not have jurisdiction by stating in its opinion, after reciting the provisions of the judgment and the particulars wherein the trial court reserved jurisdiction for an accounting, and the rendition of a money judgment thereon, ‘Further judicial action will be required in the ascertainment of the amount due, if any, upon a just accounting and in the rendition of a money judgment therefor.’ Certainly if the trial court was without jurisdiction then there could be no ‘further judicial action’ on its part nor could it ascertain the amount due upon a just accounting and render ‘a money judgment therefor.’

It is self-evident that a court without jurisdiction could not render a valid judgment. It is also crystal clear that the appellate court's decision upheld the jurisdiction of the trial court in this action and that such holding is now the law of the case. All questions and issues adjudicated on a prior appeal are the law of the case and must be adhered to through subsequent stages of the same case, both in the lower court and upon any succeeding appeal. (Allen v. California Mutual Bldg. & Loan Ass'n, 22 Cal.2d 474, 481, 139 P.2d 321; Gore v. Bingaman, 20 Cal.2d 118, 120 et seq., 124 P.2d 17; Kirman v. Borzage, 89 Cal.App.2d 898, 900[1], 202 P.2d 303.) Likewise, the law of the case doctrine will be applied to decisions of the District Court of Appeal after those decisions become final. (Gore v. Bingaman, supra, 20 Cal.2d 122[3], 124 P.2d 19; Allen v. California Mutual Bldg. & Loan Ass'n, supra, 22 Cal.2d 481[1][2], 139 P.2d 325.) The doctrine of the law of the case applies to jurisdictional questions as well as to other matters. The rule is aptly stated in 4 Cal.Jur.2d (1952), p. 606, Appeal & Error, § 700, thus: ‘The law of the case doctrine applies to jurisdictional questions as well as to other matters.’

In Clary v. Hoagland, 6 Cal. 685, at page 687, the court said: ‘The answer as we conceive is this: the first point decided by any Court, although it may not be in terms, is, that the Court has jurisdiction, otherwise it could not proceed to determine the rights of the parties. For the purposes of the first trial in this Court, the jurisdiction was as much determined as though the point had been made and passed upon; certain it is, that unless made, it cannot now be questioned.’ (See also Gore v. Bingaman, supra, 20 Cal.2d at page 120, 124 P.2d 18; Security Trust & Savings Bank v. Southern Pacific Railroad Co., 19 Cal.App.2d 420, 422, 65 P.2d 818.)

Where questions presented on a subsequent appeal were necessarily involved in a former appeal, and the conclusion reached in the former appeal could not have been reached without impliedly deciding the question subsequently urged, the decision in the former appeal is the law of the case and rules throughout all subsequent stages of the action. (Kirman v. Borzage, 89 Cal.App.2d 898, 900 [2], 202 P.2d 303; People v. Walker, 76 Cal.App. 192, 202, 244 P. 94; Neale v. Morrow, 163 Cal. 445, 448, 125 P. 1052.)

In the present case on the former appeal, as pointed out above, the appellate court of necessity impliedly held that the trial court had jurisdiction of the present action. It is settled that all question decided on a motion to dismiss an appeal become the law of the case. (Stock v. Meek, 114 Cal.App.2d 584, 586[1], 250 P.2d 622; Craig of California v. Green, 89 Cal.App.2d 829, 833, 202 P.2d 104.)

In conclusion, we quote from Mr. Justice Vallée's opinion in Tomkins v. Tomkins, 89 Cal.App.2d 243, 250, 200 P.2d 821, 826, thus: ‘If want of jurisdiction of the subject matter is made to appear, the decree is a nullity and it may be attacked either directly or collaterally on this ground. * * * These principles are subject to the qualification that if a court's jurisdiction to render a particular decree has once been attacked, a final adjudication of that issue precludes the raising of the question again.’

It is obvious that the court's jurisdiction over the subject matter of the present action was attacked on the prior appeal and that necessarily in determining the motion to dismiss, the appellate court held that the trial court did have jurisdiction and this has become the law of the case and may not now be questioned by defendant.

The judgment of dismissal is reversed.

I concur in the judgment.

The superior court pursuant to its equity powers has general jurisdiction of actions to impress trusts, to cancel deeds and to set aside fraudulent conveyances. Const.Art. VI, sec. 5; Tulare Irrigation District v. Superior Court, 197 Cal. 649, 660, 242 P. 725; Morrissey v. Morrissey, 191 Cal. 782, 784, 218 P. 396. In general, the superior court sitting in probate is without jurisdiction to try the question of title to property. Bauer v. Bauer, 201 Cal. 267, 271, 256 P. 820; In re Estate of Haas, 97 Cal. 232, 234, 31 P. 893, 32 P. 327; Ex parte Casey, 71 Cal. 269, 272, 12 P. 118. But where such title is claimed by a representative of an estate in his individual capacity, the superior court sitting in probate is vested with the jurisdiction of determining the validity of such claim upon the settlement of the final accounts of such representative. In re Estate and Guardianship of Vucinich, 3 Cal.2d 235, 243, 44 P.2d 567; Stevens v. Superior Court, 155 Cal. 148, 150, 99 P. 512; Teeple v. Stanley, 93 Cal.App.2d 581, 583, 209 P.2d 628. This exception exists because it is essential to the proper administration of estates that, for the purpose of determining the extent of the liability of the executor or administrator to those interested in the estate, the probate court should have the power to determine as against him what money or other property belonging to the estate has come into his hands. However, where a court has general jurisdiction of the subject matter a lack of jurisdiction of the particular case may be waived by failure to take timely and specific objection as may other objections to jurisdiction, such as lack of jurisdiction of the person. In re Estate of Michels, 18 Cal.App.2d 201, 203, 63 P.2d 333; Donegan v. City of Los Angeles, 109 Cal.App. 673, 682, 293 P. 912; Young v. City of Los Angeles, 86 Cal.App. 13, 17, 260 P. 798.

The foregoing doctrine is exemplified in Miller v. Forster, 131 Cal.App. 509, 21 P.2d 678, a decision whose facts closely parallel those at bar. It was an action to declare a trust, filed while the estate, for the benefit of which the action was brought, was in probate. Plaintiff was an heir of the decedent; defendant, sued in his individual capacity, was the administrator. Since defendant did not raise the point of lack of jurisdiction in the equity court by demurrer or by answer, on appeal the court refused to consider the contention, but held that defendant had waived his privilege of having to assert his individual title to the property only at the final accounting in probate. Accord: Simons v. Bedell, 122 Cal. 341, 346, 55 P. 3.

In the present action appellants, heirs of decedent, sued respondent, executrix, in her individual capacity seeking equitable relief. The complaint having been filed April 28, 1949, respondent answered without objecting to the jurisdiction of the court and raised several affirmative defenses. After a trial of more than twenty days, resulting in a verdict for appellant, respondent moved for judgment notwithstanding the verdict. Subsequently she objected to the findings of fact and conclusions of law, filed two notices of intention to moved for a new trial, argued the motion, appealed and filed an opening brief without ever questioning the jurisdiction of equity. In February 1951, seventeen months after the trial, in opposing a motion to dismiss the appeal, the question of jurisdiction was raised for the first time. In such circumstances, respondent has waived every right she had to object.

The authorities relied on by respondent may be distinguished on their facts. They concern actions to impress trusts by an heir against an executor or administrator. But in each there is an objection to jurisdiction made at the first possible instant. In Stevens v. Superior Court, supra, as well as in Re Estate of Roach, 208 Cal. 394, 281 P. 607, the action was in the probate court where it was argued that the court did not have jurisdiction to impress a trust on property held by the executor as an individual, relying on the general rule discussed above. But the court created and followed the exception in favor of the representative of an estate where the action is prosecuted by an heir. Bauer v. Bauer, supra, and Teeple v. Stanley, supra, were actions for equitable relief under the general jurisdiction of the superior court. In each of them it was held that since there had been an objection to jurisdiction made by the representative and there was an action pending in the probate court and that court had jurisdiction, the privilege of the representative would be recognized and the cases were dismissed without prejudice.

The judgment of this case is not and does not purport to be conclusive against nonappearing heirs or creditors of the estate, as to their ultimate rights to the property. The judgment does transfer the title from the name of respondent as an individual to the estate of the decedent and there it will be subject to the regular probate procedures.

The judgment vacating the prior judgment and dismissing the action should be reversed.

I dissent.

The dismissal of the prior appeal was upon the ground that the judgment was interlocutory and nonappealable. In passing on the appealability of a particular judgment or order on a motion to dismiss, an appellate court will not review the authority of the trial court to make it. 3 Cal.Jur.2d 512; In re Estate of Mailhebuau, 201 Cal. 664, 666–667, 258 P. 378; Sherman v. Standard Mines Co., 166 Cal. 524, 525, 137 P. 249; In re Seymour's Estate, 15 Cal.App. 287, 292, 114 P. 1023; Howard v. Howard, 87 Cal.App. 20, 27, 261 P. 714; In re Estate of Flint, 15 Cal.App.2d 399, 301, 59 P.2d 609. On the prior appeal no inquiry into the trial court's jurisdiction was required to determine the nonappealability of the judgment. A mere examination of the judgment disclosed that it was interlocutory, hence the appellate jurisdiction of the court to review it was not invoked. In re Estate of Mailhebuau, supra; Sherman v. Standard Mines Co., supra. The court was therefore not called upon to determine whether or not the trial court initially had jurisdiction of the subject matter. Consequently, ‘the law of the case’ is not here applicable. Actually, the only effect of the dismissal of the appeal was to clear the records of the appellate court of the matter. Central Savings Bank of Oakland v. Lake, 201 Cal. 438, 443, 257 P. 521. It ‘left the case with the superior court just as it stood on the date the abortive appeal was taken.’ In re Estate of Brady, 95 Cal.App.2d 511, 513, 213 P.2d 125, 127.

In dismissing the appeal the court undoubtedly had in mind its lack of authority to then pass upon the question of the trial court's jurisdiction which had been adverted to in the course of the argument, for the court pointed out that ‘All matters determined by the judgment will be reviewed on appeal from a final judgment when the same is entered.’ Obviously, one of the matters determined by the final judgment would be that of the trial court's jurisdiction.

The jurisdiction of the subject matter in the instant proceeding was exclusively in the probate court under the decisions in Bauer v. Bauer, 201 Cal. 267, 256 P. 820, and In re Estate of Roach, 208 Cal. 394, 281 P. 607.

In the Bauer case the executrix of decedent's estate claimed certain property as her own. Plaintiffs, as legatees, brought a suit in equity against her, praying that she be adjudged a trustee of said property for the benefit of plaintiffs and the estate. The trial court sustained, without leave to amend, a demurrer and dismissed the action. In affirming the judgment the Supreme Court pointed out, 201 Cal. at page 271, 256 P. at page 821, that ‘The main question presented upon this appeal is as to whether the court had jurisdiction of the subject-matter of the action, for the reason that there was pending in the probate court the proceeding for the administration of the estate of Emile Bauer, deceased, and that, this being so, the probate court was the proper forum for the presentation and determination of the issues sought to be tried in this action.’ (Emphasis added.) Two years later, in the In re Estate of Roach, supra, it was held that the probate court had exclusive jurisdiction to hear the objections of an heir of the decedent to the effect that the administratrix of the estate had fraudulently procured, shortly prior to the death of the decedent, a deed to certain of his separate property, and that she had failed to include such property in the assets of the estate. In arriving at its conclusion the court relied on the Bauer case, and stated 208 Cal. at page 396, 281 P. at page 608, that ‘The necessary effect of the above decision, in dismissing said proceeding in equity, is to vest in the probate court exclusive jurisdiction to hear and determine issues of this character.’ (Emphasis added.) Thus these two cases adjudicate the question of the jurisdiction of the subject matter in an action such as this both from the standpoint of the general jurisdiction of the superior court and the specific jurisdiction of the probate court. They make it clear that such jurisdiction lies exclusively with the latter court. Where the trial court initially lacks jurisdiction of the subject matter of the action, such jurisdiction may not be conferred by either consent, waiver, agreement, acquiescence or estoppel. (Sampsell v. Superior Court, 32 Cal.2d 763, 773, 197 P.2d 739; Fong Chuck v. Chin Po Foon, 29 Cal.2d 552, 554, 176 P.2d 705; Schipp v. Superior Court, 209 Cal. 671, 677, 289 P. 825; Higgins v. Coyne, 75 Cal.App.2d 69, 70, 170 P.2d 25.) Since the trial court never acquired jurisdiction of the subject matter here involved it was proper to set the judgment aside. Therefore the judgment here on appeal, which vacated the prior judgment, should be affirmed.

FOOTNOTES

FOOTNOTE.  During the course of the argument the following occurred:‘Justice Vallée: Are there any authorities to the effect that the court does not have jurisdiction in equity to try title as between an executor or administrator on the one hand and the estate on the other?‘Mr. Bergman: Yes, but I did not go into the argument because that would affect the entirety of the judgment and not the interlocutory. The question is, is it an interlocutory or a final judgment? A direction for an accounting is final. On the basis of the accounting they make their motion to dismiss. This is not the time to argue validity of the entire judgment—that would be an issue on the main appeal.’

McCOMB, Justice.

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