WELLS FARGO CO v. CITY AND COUNTY OF SAN FRANCISCO (1944)

On July 15, 1908, plaintiff filed its complaint to recover taxes paid under protest in the sum of $1,860. Notice of order overruling defendant's demurrer was served November 30, 1910. No further proceedings were had until January 25, 1938, when an attorney, who was not the attorney of record for plaintiff, applied to the superior court and procured entry of judgment for $5,700.90 and costs. On November 21, 1938, defendant gave notice of motion to set aside this judgment under section 583 of the Code of Civil Procedure. The motion was granted and the proceeding was dismissed on October 3, 1940. The appeal is from this order.

At the hearing of the motion the chief ground of attack was that the court was without jurisdiction to enter the judgment after the time fixed in the Code section. Secondarily the defendant attacked the incapacity of the attorney to appear and move for the entry of the judgment. This matter does not call for discussion, but is important only so far as it relates to the comments herein on the conduct of such attorney when the entry of the judgment was procured.

The real issue on this appeal is whether the express provisions of section 583 are mandatory and prohibitory or whether the court has the power and jurisdiction to disregard the Code section and proceed within the barriers of “judicial discretion.” The section provides that “Any action heretofore or hereafter commenced shall be dismissed by the court * * * after due notice to plaintiff or by the court upon its own motion, unless such action is brought to trial within five years after the plaintiff has filed his action * * *.” Emphasis added. The section was amended in this form effective August 21, 1933. There thus elapsed since the effective date of the amendment a period of four years and five months before the judgment was entered and more than thirty years after the complaint was filed.

The cases uniformly hold that the provisions of the Code section are mandatory and prohibitory. Miller & Lux, Inc., v. Superior Court, 192 Cal. 333, 338, 219 P. 1006; Sacramento T. Co. v. California Reclam. Co., 205 Cal. 42, 44, 269 P. 640; Superior Oil Co. v. Superior Court, 6 Cal.2d 113, 116, 56 P.2d 950; Cruse v. Superior Court, 102 Cal.App. 290, 294, 283 P. 73; Prudential Ins. Co. v. Superior Court, 117 Cal.App. 528, 529, 4 P.2d 294; Bank of America, etc., v. Superior Court, 22 Cal.App.2d 450, 452, 71 P.2d 296; Donovan v. Hollar, 25 Cal.App.2d 548, 554, 78 P.2d 240.

The amendment to the statute above noted was held retroactive and constitutional in Rosefield Packing Co. v. Superior Court, 4 Cal.2d 120, 122, 47 P.2d 716, 717, as a statute which merely changed the civil procedure, and numerous cases are there cited to that point. The court there noted the qualification of the rule which gives a party a “reasonable time” to act where the change in the statute results in a shortening of the time. It was then held that this amendment to section 583 was applicable to the particular case because the plaintiff “had practically an entire year” to bring his case to trial after the effective date of the amendment. The court then cited and either distinguished or disapproved of Coleman v. Superior Court, 135 Cal.App. 74, 26 P.2d 673; Masonic Mines Ass'n v. Superior Court, 136 Cal.App. 298, 28 P.2d 691; and Shoemaker v. Superior Court, 4 Cal.App.2d 586, 41 P.2d 343.

Then upon the question which the appellant stresses here––the discretion of the trial court to determine what is a reasonable time in each case, the court said (4 Cal.2d at page 124, 47 P.2d at page 718): “It is clear that the Shoemaker case proceeds upon an erroneous interpretation of the principle considered in the Coleman case. Whether there was a reasonable time in these cases is not a matter committed to the discretion of the trial court. The question is one of constitutionality of the statute which in terms applies to the pending case; and if it appears that there was a reasonable time for exercise of the remedy before the statutory bar became fixed, the lower court cannot consider individual hardship or other circumstances, but must give effect to the express provisions of the law. On this point the case of Shoemaker v. Superior Court, supra, must be disapproved.” Then in Superior Oil Co. v. Superior Court, supra, a period of one year and five months was held a reasonable time. In Murphy v. Murphy, 5 Cal.2d 640, 55 P.2d 1169, a period of seventy–one days was held reasonable and in both cases it was held that failure to act within such “reasonable time” required a dismissal under the section.

Concluding as we must from these authorities that the period of four years and five months which elapsed after the effective date of the statute was not a reasonable time within which the plaintiff could bring this cause to trial, it necessarily follows that the jurisdiction of the trial court to proceed to trial and judgment was then lost, since there is nothing in the record which would permit any possible application of the only exception mentioned in the statute––a stipulation in writing extending such time. Conceding that the trial court had original jurisdiction of the parties and of the subject matter, and jurisdiction to try the cause and enter judgment within the statutory period, the question remains whether such jurisdiction having been lost by the lapse of time the subsequent trial and judgment was void upon the face of the record.

“Jurisdiction” has been defined to mean the “power to hear and determine, but it involves also the power to give the judgment that is entered.” State v. Reed, 132 Minn. 295, 156 N.W. 127. “Jurisdiction is the power to hear and determine the cause.” Pacific States Savings & Loan Co. v. Superior Court, 217 Cal. 517, 521, 19 P.2d 977, 979. It means the “authority to do the particular thing done.” Spreckels S. Co. v. Industrial Acc. Comm., 186 Cal. 256, 260, 199 P. 8, 9. A want of jurisdiction arises when a tribunal seeks to exercise in a particular manner a power in “excess of the authority possessed.” Id. In a discussion of this subject the Supreme Court in Abelleira v. Disritct Court of Appeal, 17 Cal.2d 280, 288, 289, 109 P.2d 942, 947, 132 A.L.R. 715, said:

“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. * * *

“But in its ordinary usage the phrase lack of jurisdiction' is not limited to these fundamental situations. For the purpose of determinng the right to review by certiorari, restraint by prohibition, or dismissal of an action, a much broader meaning is recognized. Here it may be applied to a case where, though the court has jurisdiction over the subject matter and the parties in the fundamental sense, it has no ‘jurisdiction’ (or power) to act except in a particular manner, or to give certain kinds of relief, or to act without the occurrence of certain procedural prerequisites. Thus, a probate court, with jurisdiction of an estate, and therefore over the appointment of an administrator, nevertheless acts in excess of jurisdiction if it fails to follow the statutory provisions governing such appointment. Texas Co. v. Bank of America [Nat. Trust & Savings Ass'n], 5 Cal.2d 35, 39, 53 P.2d 127. The Superior Court may have jurisdiction over a cause of action and the parties to a suit for libel, but in the case of non–residents, a bond for costs is required by statute, and unless such bond is filed, it is without jurisdiction to proceed, and will be restrained by writ of prohibition. Shell Oil Co. v. Superior Court, 2 Cal.App.2d 348, 37 P.2d 1078; see, also, Carter v. Superior Court, 176 Cal. 752, 757, 169 P. 667. A court with jurisdiction over a cause may hear and determine it and give judgment, but it cannot award costs in a situation not provided by statute. Michel v. Williams, 13 Cal.App.2d 198, 56 P.2d 546. The Superior Court may have jurisdiction over a particular cause, but a disqualified judge may not sit and hear it if objection to his qualifications is raised, and prohibition will lie to prevent him from trying it. Hall v. Superior Court, 198 Cal. 373, 387, 245 P. 814. Where an injunction is sought against enforcement of a public statute, the court despite its general equitable powers, has no jurisdiction to issue it. Loftis v. Superior Court, 25 Cal.App.2d 346, 352, 77 P.2d 491; Reclamation Dist. v. Superior Court, 171 Cal. 672, 154 P. 845. A court may have jurisdiction to grant a new trial after motion based upon proper statutory grounds, but has no jurisdiction to make the order unless the moving party has given his notice of intention within the prescribed statutory time. See Peters v. Anderson, 113 Cal.App. 158, 298 P. 76. The court has power under section 473 of the Code of Civil Procedure to set aside its judgment or order on motion where it was entered against a party through inadvertence, excusable neglect, or mistake; but that power is wholly lost at the end of the six months' period prescribed by statute. [In re] Estate of Hunter, 99 Cal.App. 191, 196, 278 P. 485. An appellate court may have power to hear and determine a particular case on appeal, but is without jurisdiction to do so unless the procedural step of notice of appeal within the prescribed statutory time is taken. Aregood v. Traeger, 94 Cal.App. 227, 270 P. 1002. And if the notice is given before judgment is actually rendered, the premature appeal will be dismissed (Aspegren & Co. v. Sherwood, Swan & Co., 199 Cal. 532, 250 P. 400), or a lower appellate court may be prevented from hearing it by writ of prohibition. Shriver v. Superior Court, 48 Cal.App. 576, 582, 192 P. 124. After reversal of a judgment with directions to the lower court, it has jurisdiction to enter judgment, but is limited by the directions of the appellate court and is without jurisdiction to permit amended pleadings to raise new issues; hence prohibition will lie to prevent it from retrying the case. Lial v. Superior Court, 133 Cal.App. 31, 23 P.2d 795. The same is true where the superior court, in an appeal from a justice's court on questions of law alone, attempts to try the cause de novo. Sour v. Superior Court, 1 Cal.2d 542, 36 P.2d 373.”

In the Abelleira case a writ of prohibition was issued restraining the District Court of Appeal from entertaining an original proceeding in mandamus on the ground that it had no jurisdiction of the subject matter. In Evans v. Superior Court, 14 Cal.2d 563, 96 P.2d 107, the Supreme Court issued a writ of prohibition restraining the superior court from enforcing a temporary injunction upon the ground that the injunction was in excess of the court's jurisdiction since the act sought to be restrained was one specially authorized by statute. In Beard v. Superior Court, 39 Cal.App.2d 284, 102 P.2d 1087, prohibition was issued to restrain enforcement of an order for the payment of alimony made after defendant had filed a motion for change of venue. In Daugherty v. Superior Court, 23 Cal.App.2d 739, 74 P.2d 549, prohibition issued to restrain issuance of an injunction to restrain execution of a public statute.

The theory upon which these cases are based is that an act is beyond the jurisdiction of a court which, though having jurisdiction over the subject matter and of the parties, has “no ‘jurisdiction’ (or power) to act except in a particular manner.” Abelleira v. District Court of Appeal, supra. Cases are numerous holding that when such an act is threatened it may be restrained by prohibition, that when the act is done it may be annulled by certiorari, and that when it is refused it may be enforced by mandamus. The criterion upon which the question of “jurisdiction” is often determined, therefore, is whether any one of those writs will lie.

When we come to the subject of direct and collateral attack we are met by the long recognized confusion of the decisions as to the legal effect of the various methods used. The decisions agree that the writ of prohibition is a collateral attack and that the writ of certiorari is a direct attack, though a distinction between such writ and a direct appeal is fully recognized. Certiorari is said to be a direct attack––“at least so far as the determination of jurisdictional facts is concerned.” 15 Cal.Jur. p. 48. But, unlike prohibition, the writ of certiorari will not lie if the party has an adequate remedy by appeal. Code of Civil Procedure, sec. 1068. A motion made to set aside a judgment or order, if made within the statutory period, is often treated as a direct attack, while one not made within such period has been held to be a collateral attack, or at least subject to the rules governing such attacks. 15 Cal.Jur. p. 47. If we may assume from the authorities there cited that the motion under consideration having been made after the expiration of the statutory period is governed by the rules of collateral attack we may rely upon the authorities construing the offices of prohibition and mandamus as bearing more directly on the question presented––whether, assuming that the entry of the judgment was beyond the jurisdiction and power of the court, the respondents were entitled to move in this manner to have it vacated. The clearest expression of this phase of the rule is found in the Abelleira case, 17 Cal.2d 288, 109 P.2d 947, 132 A.L.R. 715, where the Supreme Court said: “For the purpose of determining the right to review by certiorari, restraint by prohibition, or dismissal of an action, a much broader meaning is recognized. Here it may be applied to a case where, though the court has jurisdiction over the subject matter and the parties in the fundamental sense, it has no ‘jurisdiction’ (or power) to act except in a particular manner, or to give certain kinds of relief, or to act without the occurrence of certain procedural prerequisites.”

A motion to vacate a judgment made after the statutory period, and which is therefore a collateral attack upon the judgment, has been approved in McGuinness v. Superior Court, 196 Cal. 222, 237 P. 42, 40 A.L.R. 1110, where the Supreme Court, in denying a writ of prohibition, held that the superior court had “jurisdiction” to entertain a motion to set aside a final decree of divorce where the motion was made more than six months after the entry of the decree. The basis of the decision was that, since the parties had resumed the marital relations after the entry of the interlocutory decree of divorce, it was an extrinsic fraud upon the court to have the final decree entered or, to state it in another way, the failure to disclose to the court the fact of the resumption of marital relations was an imposition upon the court because, if that fact had been disclosed, the court might have refused to enter the final decree. To the same effect are Britton v. Bryson, 216 Cal. 362, 14 P.2d 502; Raps v. Raps, 20 Cal.2d 382, 125 P.2d 826. Though there is a great deal said in the McGuinness case [196 Cal. 222, 237 P. 44, 40 A.L.R. 1110] about “extrinsic fraud” and the power of the court to “purge its records” of a judgment or order tainted with such fraud, the pith of the decision is that the entry of the final decree under those circumstances was beyond the “power” of the superior court and for that reason could be vacated on motion. The “power” of the superior court is found in the provisions of section 132 of the Civil Code that “When one year has expired after the entry of such interlocutory judgment, the court * * * may enter the final judgment granting the divorce * * *.” Thus, if a final decree is entered before the expiration of one year after the entry of the interlocutory decree, it is beyond the power and jurisdiction of the court and so may be attacked by motion made more than six months after its entry. Nolte v. Nolte, 29 Cal.App. 126, 154 P. 873; Grannis v. Superior Court, 146 Cal. 245, at page 252, 79 P. 891, at page 894, 106 Am.St.Rep. 23, where the court said: “The law can only be made effectual for the accomplishment of its object by holding that any final judgment purporting to grant the divorce is absolutely void if thus prematurely entered.” And (146 Cal. at page 254, 79 P. at page 895, 106 Am.St.Rep. 23) “The law in question in this case, as we have construed it, was intended as a limitation upon the power of the court with respect to the subject–matter, so that the court shall not be competent to grant a final divorce at any time during the year succeeding the interlocutory judgment, and so as to require that the interlocutory judgment be first entered.” And hence where it is held in this line of cases that section 132 of the Civil Code is a limitation upon the power of the court to enter a final decree prior to the expiration of one year after the entry of the interlocutory decree, so it is held in the McGuinness and similar cases that the same section is a limitation upon the power of the court to enter a final decree after the expiration of that period if the parties have resumed marital relations in the meantime. If, therefore, such a decree is void and open to attack by motion made more than six months after its entry because the parties failed to disclose facts which would have permitted the trial court to deny the decree, it would seem to follow necessarily that the failure here to diclose facts which would have compelled the trial court to deny the judgment must render that judgment open to the same method of attack.

In Williams v. Reed, 43 Cal.App. 425, 432, 185 P. 515, emphasis is placed on the language of section 473 of the Code of Civil Procedure permitting the court, within the six months' period, to relieve a party from a judgment taken against him through his mistake or neglect, rather than upon the mistake of the court. And cases are there cited, as well as in McGuinness v. Superior Court, supra, pointing to the difference between “judicial error,” to be corrected on appeal, and excess of jurisdiction which may be attacked collaterally.

The cases coming under section 132 of the Civil Code and those coming under section 583 of the Code of Civil Procedure are strikingly alike. In the first the language of the section is “when one year has expired * * * the court * * * may enter the final judgment.” In the second the language is that when an action has not been brought to trial within five years after it was filed the same “shall be dismissed by the court.” If there is any difference between the Code sections in so far as the question of jurisdiction or power is concerned, the stronger restriction is found in the latter which expressly demands the dismissal of the action and thereby withholds from the court power or jurisdiction to take any other proceedings. This is not unlike the rule of those cases coming under what is now section 396b of the Code of Civil Procedure holding that when a motion for change of place of trial is duly made the court is without power to take any other proceedings in the action until such motion is disposed of. Nolan v. Mc Duffie, 125 Cal. 334, 337, 58 P. 4; Beard v. Superior Court, 39 Cal.App.2d 284, 286, 102 P.2d 1087.

There is a line of cases involving the provisions of section 581a of the Code of Civil Procedure which calls for discussion. The first paragraph of that section provides: “No action * * * shall be further prosecuted * * * and all [[[[such] actions * * * must be dismissed” unless summons shall have been issued within one year. The second paragraph provides: “All actions * * * must be dismissed * * * if summons has been served, and no answer has been filed, if plaintiff fails * * * to have judgment entered within three years after service of summons.” In interpreting these two pargaraphs some of the cases have made a distinction in the language used and have held the first paragraph to be mandatory and jurisdictional and the second a matter permitting “judicial error.”

In the early case of Modoc Land, etc., Co. v. Superior Court, 128 Cal. 255, 60 P. 848, it was held that the provisions of the first paragraph were mandatory and jurisdictional. The Supreme Court issued a writ of prohibition preventing further proceedings in the case saying (128 Cal. at page 256, 60 P. at page 849): “The court is deprived of jurisdiction to take any other action than to dismiss the cause, whether one day or many years elapse before its attention is called to the subject. The declaration that ‘no further proceedings shall be had therein’ is a statutory prohibition against any further proceedings, and, if the court should assume to act in disregard of this prohibition of the statute, it would be acting without any jurisdiction.” The case was followed with approval in Bellingham Bay L. Co. v. Western A. Co., 35 Cal.App. 515, 518, 170 P. 632, where many other authorities are cited.

But when the appellate courts approached the second paragraph of the section they have intimated that a different rule should be applied. Cook v. Justice's Court, 16 Cal.App.2d 745, 61 P.2d 357; Merner L. Co. v. Silvey, 29 Cal.App.2d 426, 84 P.2d 1062; Pavlovich v. Watts, 46 Cal.App.2d 103, 115 P.2d 511. In the Cook case the holding was not pertinent to the decision as the question involved was the entry of a default judgment by the clerk of the justice's court, and it was held that such act was ministerial and hence not subject to prohibition. In the Merner case it was held that because of the difference in the language between the first and second paragraphs of section 581a the intention of the Legislature appeared to be that the latter should not be prohibitory or mandatory. This ruling was followed in the Pavlovich case without extended discussion.

But in Lynch v. Bencini, 17 Cal.2d 521, 110 P.2d 662, which is the latest expression of the Supreme Court on the subject, some doubt is cast upon the rulings in the Cook and Merner cases. The language of the Cook case was termed dicta and the distinction made in the Merner case between the two paragraphs of section 581a was disapproved in the following language (17 Cal.2d at pages 532, 533, 110 P.2d at page 668): “The provision of section 581a which we have been considering would be largely meaningless if, where such a judgment is applied for in the absence of the defendant, the judgment is to be taken as conclusive and immune from direct attack. To so construe this provision would be not only to disregard that part thereof which provides that the action must be dismissed by the court ‘on its own motion’, but would be to write in a provision that the amendment was to apply only when the defendant objected at the time the judgment was applied for. No such provision was included by the legislature and should not be added by judicial decision to the plain language of the statute.”

This language merely emphasizes the simple formula that when a court is given jurisdiction to perform a certain act within a certain time only it is without jurisdiction or power to perform the act after the period fixed. As said in the Abelleira case 17 Cal.2d at page 288, 109 P.2d at page 947, 132 A.L.R. 715) “it has no ‘jurisdiction’ (or power) to act except in a particular manner, * * * or to act without the occurrence of certain procedural prerequisites.” Here the “procedural prerequisites” were that the time when the court could act was fixed by statute at five years after the action was filed. Certainly it would not be argued that, under section 660 of the same Code, the court would have “jurisdiction” to commit “judicial error” by granting a motion for new trial after the expiration of the sixty–day period.

This presents another line of decisions which requires dicussion––the cases holding that when an inferior tribunal threatens action in excess of its jurisdiction, or refuses action within its jurisdiction, mandamus is available to compel action within the limits of jurisdiction. In a recent case the Supreme Court held that mandamus was the proper remedy to compel the clerk to issue a writ of execution notwithstanding an order of the trial court granting a new trial since such order was beyond the jurisdiction of the trial court because entered more than sixty days after service of notice of motion. Kahn v. Smith, 23 Cal.2d 12, 142 P.2d 13. The judgment in the Kahn case was by a divided court and in both the majority and minority opinions there is considerable discussion of the question of the availability of mandamus in view of the remedy by appeal, and of the related question whether the failure to pursue the latter remedy rendered the “validity” of the order res judicata. In holding that the remedy was available the majority opinion cites and relies upon Payne v. Hunt, 214 Cal. 605, 7 P.2d 302, and similar cases. In holding that the matter was not adjudicated by the failure to appeal it relied upon Middlecoff v. Superior Court, 220 Cal. 410, 31 P.2d 200, and other cases cited. If a more extended discussion had been deemed necessary the same result would appear to have been obvious. Mandamus is not a writ of right, but a writ of discretion. If to the reviewing court the remedy by appeal is deemed adequate under all the facts and circumstances of the particular case, the reviewing court may, in the exercise of its discretion, deny mandamus. If under those circumstances an appeal is deemed inadequate the writ may issue. Though not stated in this language such is the pith of the authorities which the majority in the Kahn case cited.

As to the second point the result reached by the majority follows from the simple formula that to render a matter “adjudicated” the determination must have been made by a tribunal within the limits of its jurisdiction. Hence, when the the trial court purports to grant a new trial after expiration of the statutory period its order is in excess of its jurisdiction and can not be given jurisdictional validity by a failure to appeal.

As we understand the ruling in the Kahn case it is that, notwithstanding the right of appeal from a void order, the reviewing court may in its discretion, if it deems such remedy inadequate, issue mandamus to compel compliance with the statutory procedure. The function of the writ of mandamus is to require an inferior tribunal or official to perform “an act which the law specially enjoins.” Section 1085, Code of Civil Procedure. Hence the writ will lie to compel an inferior tribunal to dismiss an action under sections 581a and 583 of this Code. But it has always been recognized that a demand for performance of the act is a prerequisite to a petition seeking the writ to compel performance (but with exceptions which are not material here). 16 Cal.Jur. p. 771. Since the Code section “specially enjoins” upon the trial court the duty to dismiss the action upon demand, or upon its own motion, and since this is a duty which can be enforced by mandamus, it would appear without any sense or reason to hold that the trial court, upon application to it alone as was done here, could not perform the duty which “the law specially enjoins” because it had theretofore done a wholly illegal act in entering the judgment.

Another line of cases requires some comment. Rio Vista Mining Co. v. Superior Court, 187 Cal. 1, 200 P. 616; Perry v. Magneson, 207 Cal. 617, 279 P. 650; and Bayle–Lacoste & Co. v. Superior Court, 46 Cal.App.2d 636, 116 P.2d 458, are all cited to the proposition that “Section 583 does not deprive the court of jurisdiction.” Artificially the statement is correct, but it must be examined in the light of the connection in which it was used. The cases involved the exception contained in the Code section “where the parties have stipulated in writing that the time may be extended.” In discussing this portion of the Code section, and relying upon the well settled rule that when a court has general jurisdiction of the subject matter of the cause the voluntary appearance of the parties and submission of the cause confers jurisdiction to try the issues, the Supreme Court, in the Rio Vista case 187 Cal. at page 5, 200 P. at page 618, said: “There is, moreover, nothing in the wording of the statute in question to deprive the court of jurisdiction upon the mere lapse of five years.” The Bayle–Lacoste case cited this language and reached the same result––that because the parties had stipulated for a continuance of the time of trial beyond the five–year period the court was not therefore deprived of jurisdiction to try the issues after the elapse of that period. The soundness of these rulings is not open to question because they are in accord with the express language of the exception. The effect of the decisions is that the trial court retains jurisdiction to try the issues if such a stipulation extending the time is on file, but we can find nothing in any of these cases which purports to hold that if such a stipulation has not been made the trial court, without the consent of the defendant, and without notice or motion, may proceed to trial and judgment after such period has expired. We view the case in the same light as Kahn v. Smith, supra. If the court is without “jurisdiction” to grant a new trial after the expiration of the sixty–day period, and if an order so made is void on its face and may be collaterally attacked in mandamus to enforce execution on the judgment, we can find no reason why a judgment entered in total disregard of the express provisions of section 583 is not equally void and subject to collateral attack.

It is suggested that, notwithstanding the express provisions of the statute, the trial court had “power” to commit judicial error and determine that the time had not expired, or that it had been extended by stipulation. It is not consistent with the rules of law that a court may determine that each month of the year contains forty–one days and that this may be ascribed to “judicial discretion.” As the Supreme Court said in Kahn v. Smith, supra, the statute fixes the time and method of calculating it, and any departure from the statute in that respect is an excess of “jurisdiction.” Here there is no contention that any act of respondent took the place of an extension of the statutory time. The case lay idle for nearly thirty years, and the judgment was taken without notice. It thereupon became the duty of the trial court to dismiss the action upon respondent's motion because the statute expressly provides that any action not brought to trial wtihin the time fixed “shall be dismissed,” and, since the only exception stated is a stipulation extending time, it must be presumed that no other exceptions were intended. Hence, even if the judgment were not void on its face, the express wording of the statute would require a dismissal. But we hold that the judgment was void on the face of the record and as such subject to the attack by the motion made here.

We reach the conclusion that the order should be affirmed for another reason. The complaint was one to recover $1,860 for taxes paid under protest. The judgment was for $5,700.90. Section 580 of the Code of Civil Procedure provides that in a default judgment the relief granted to the plaintiff cannot exceed that demanded in the complaint. It does not appear upon the record, but the parties assume that the excess is made up in interest. If so, it was a relief which the court was without power to grant. Spencer v. City of Los Angeles, 180 Cal. 103, 115, 179 P. 163; United Taxpayers' Co. v. City & County of San Francisco, 55 Cal.App. 239, 243, 203 P. 120; 24 Cal.Jur. p. 318. And directed particularly to the allowance of costs against public agencies see Ridge v. Boulder Creek, etc., School Dist., 60 Cal.App.2d 453, 140 P.2d 990; 23 Cal.Jur. p. 587.

It may be argued that it was simply judicial error to allow the excess and that such error could be corrected on appeal alone. But in Michel v. Williams, 13 Cal.App.2d 198, 56 P.2d 546, it was held that the allowance of costs against a defaulting party in a suit to quiet title was an excess of jurisdiction open to collateral attack. The ruling was cited with approval in the Abelleira case, 17 Cal.2d at page 289, 109 P.2d at page 947, 132 A.L.R. 715, as an instance of a judicial act which was beyond jurisdiction. It would follow therefore that, upon the face of the record the judgment as entered was one which the trial court had no power or jurisdiction to enter. When these facts were presented on the motion to vacate, the trial court was confronted with precisely the same situation as that in McGuiness v. Superior Court, supra. Was the request for judgment without a disclosure of the true amount sued for, and the elapse of time, a fraud or imposition upon the court which it had the “inherent” right to remedy? (Here it should be repeated that the entry of the judgment was procured by an attorney other than those who appear for appellant.) If we may assume that the excess in the judgment is based upon interest on the taxes paid, it is a fair assumption that such fact was not disclosed to the trial court because we must presume that the trial court regularly performed the duty imposed upon it (section 1963, Code of Civil Procedure) and hence that the “irregular” judgment was the result of appellant's concealment. There is no essential difference between the withholding of such facts and the withholding of information that the parties cohabited after entry of an interlocutory decree of divorce. In the latter case, if the information had been disclosed, the law, at the time of the McGuinness decision, did not prohibit the entry of a final decree. Here, if the information as to the elapse of time and the character of the case had been disclosed the law did prohibit the entry of any judgment. If the one is fraud, so is the other, or, if we do not call either fraud, both are so intimately related to it that both should be subject to the same method of attack.

Other questions do not require discussion.

The order is affirmed.

NOURSE, Presiding Justice.

STURTEVANT and SPENCE, JJ., concur.