BECKLEY v. RECLAMATION BOARD (1956)

These are consolidated appeals from orders denying plaintiffs' motions to vacate judgments of dismissal, which judgments were entered pursuant to orders of the court sustaining defendants' demurrers without leave to amend.

For convenience, counsel for all of the parties stipulated that the record in the case of Beckley v. Reclamation Board, case number 9453 in the trial court, could serve as the clerk's transcript on all four appeals. The record in that case shows that plaintiff's notice of motion to vacate the judgment was made upon the grounds that it was entered through the mistake, inadvertence, surprise or excusable neglect of counsel; and upon the grounds that the judgment as entered was contrary to the provisions of sections 595, 1054 and 1054.1 of the Code of Civil Procedure, and therefore void.

In support of said motion, affidavits were filed by plaintiff's attorneys, Earl D. Desmond and E. Vayne Miller, and by F. G. Hammett, manager of the Sacramento office of the Western Union Telegraph Company. Attorney Desmond, by his affidavit, averred that he and Mr. Miller were the sole attorneys of record for the plaintiff; that he was a member of the Senate of the California Legislature; that he was in attendance at the second portion of the regular 1953 session of the Legislature from February 24, 1953, until its adjournment on June 10, 1953; that after said demurrer to the first amended complaint had been submitted to the trial court, affiant and Mr. Miller were served notice on or about May 11, 1953, that said demurrer had been sustained without leave to amend; that in the belief that said complaint could be amended to state a cause of action, affiant sent the following telegram on May 20, 1953, to the trial court: ‘Request entry judgment George Beckley Erissey and Seaver agaisnt state be not executed by Court until June 10th. Legislative duties necessitate continuance so I can study proceedings.’ Affiant further averred that on June 5 and again on June 19, 1953, he sent telegrams requesting that judgments not be entered until June 19 and June 26, respectively; that affiant believed the trial court would grant an extension of time and not enter a judgment prior to June 26, or that the trial court would inform counsel of the denial of his request; that affiant believed the trial court would not enter judgment prior to the time extended by the Code of Civil Procedure which would have been 30 days after the adjournment of the Legislature; and that affiant believed that the statutory provisions were mandatory upon the court after the receipt of said telegrams.

Mr. Hammett stated in his affidavit that each of the telegrams sent by Senator Desmond was, according to the company's records, received by the trial court.

Mr. Miller stated in substance the same facts as set forth by Senator Desmond, and in addition averred that by reason of the trial court's failure to grant the statutory or a reasonable continuance to Senator Desmond, and that because on June 24 and July 13, 1953, the judgment did not appear in the ‘document file’ of the action, although it had been entered in the ‘Judgment Book’, that it was not until August 4 that affiant learned from a deputy county clerk that the judgment had been rendered and entered on June 4.

Except for the hearsay statements contained in a counter-affidavit filed by Mr. Shank, a deputy attorney general, the statements contained in the affidavits of plaintiff's counsel and Mr. Hammett concerning the telegrams are uncontradicted. In his affidavit Mr. Shank stated that he personally conferred with the trial judge on September 23, 1953, and that the judge stated to him that he had received two telegrams, one dated June 6, 1953, and the other dated June 19, 1953, but that ‘he had not received a telegram dated May 24, 1953, and had no knowledge of such a telegram.’ (This is presumably the telegram of May 20.) Contrary to defendants' claim, the trial court's memorandum of decision does not indicate whether or not he received that telegram prior to the entry of the judgment.

On December 3, 1953, counsel for plaintiff filed a proposed amendment to the first amended complaint. Thereafter on December 15, 1953, the motion to vacate the judgment was denied, as was plaintiff's motion to set aside the order on the motion to vacate and permit consideration of plaintiff's proposed amendment to the first amended complaint. Plaintiff's appeal is from both orders.

The pertinent portions of section 595 of the Code of Civil Procedure are as follows:

‘The trial of any civil action, or proceeding in a court, * * * shall be postponed when it appears to the court, * * * that * * * any attorney of record * * * is a member of the Legislature of this State and that the Legislature is in session * * *. When the Legislature is in session * * * such action or proceeding shall not, without the consent of the attorney of record therein, be brought on for trial or hearing before the expiration of thirty (30) days next following final adjournment * * *.’

Section 1054.1 of the Code of Civil Procedure provides in part that,

‘When an act to be done, * * * relates to the pleadings in the action, * * * the time allowed therefor, * * * shall be extended * * * when it appears to the judge * * * that an attorney of record for the party applying for such extension is a Member of the Legislature of this State, and that the Legislature is in session * * *. When the Legislature is in session or in recess, extension shall be to a date not less than thirty (30) days next following the final adjournment of the Legislature * * *’.

In the case of Burtnett v. King, 33 Cal.2d 805, 205 P.2d 657, 12 A.L.R.2d 333, a somewhat similar question was presented relative to the interpretation of certain mandatory requirements of the statute there in question. It was there stated, 33 Cal.2d at page 807, 205 P.2d at page 658:

‘It has been held repeatedly, and recently, that where a statute requires a court to exercise its jurisdiction in a particular manner, follow a particular procedure, or subject to certain limitations, an act beyond those limits is in excess of its jurisdiction.’

Applying the enunciated rule to the facts herein, if the hearsay statement contained in the affidavit of Mr. Shank be disregarded, as it must, Franklin v. Nat C. Goldstone Agency, 33 Cal.2d 628, 631, 204 P.2d 37; Gay v. Torrance, 145 Cal. 144, 151–152, 78 P. 540, then not only was there the presumption that the telegram of May 20 was received by the trial court, Eppinger v. Scott, 112 Cal. 369, 42 P. 301, 44 P. 723, but there was also the direct statement contained in the Hammett affidavit that the telegram was received. Hence on this record we must consider that the telegram was received.

Necessarily, therefore, when it appeared to the trial court that Senator Desmond was in attendance at a regular session of the Legislature, that court was without power other than to continue the case in accordance with the mandatory provisions of the quoted sections. Stated otherwise, by failing to act in the particular manner prescribed by those sections, the trial court exceeded its power, and such act was in excess of its jurisdiction and void. Bottoms v. Superior Court, 82 Cal.App. 764, 768, 256 P. 422; see also Barton-Mansfield Co. v. Higgason, 192 Ark. 535, 92 S.W.2d 841.

Furthermore, by reason of the inherent power of the court to set aside a void judgment, even on its own motion, it was immaterial how such invalidity was brought to the attention of the court (29 California Jurisprudence, Sec. 120, p. 38); and therefore it becomes unnecessary to discuss the contentions made by defendants in support of the orders.

The orders are reversed.

PEEK, Justice.

VAN DYKE, P. J., and SCHOTTKY, J., concur.