JOHNSON v. Hayes Cal Builders, Inc., Defendant. (1963)

Elmer L. Johnson, the original plaintiff herein, by a first amended complaint directed against Hayes Cal Builders, Inc., a corporation, hereinafter referred to as ‘Hayes', and other defendants, set forth causes of action to recover upon a contract, on a common count, and for declaratory relief; caused a writ of attachment to be levied against a $28,000 bank account of the defendant ‘Hayes'; and become the indemnitee under a surety bond in the sum of $28,000 issued by Continental Casualty Company, Inc., which was posted to effect a release of that attachment. In due course, through a firm of attorneys, the defendant ‘Hayes' filed its answer; thereafter executed an instrument purporting to substitute ‘itself in propria persona in the * * * action * * * in the place and stead of’ its attorneys, to which the latter attached their consent; and gave notice to the plaintiff of this substitution by a writing which stated its address and telephone number. Subsequently there was served and filed in the action certain interrogatories directed to the defendant ‘Hayes' which were not answered within the time allowed by law, or at all. Thereafter, upon motion of the plaintiff, the aforesaid answer was stricken and the default of the defendant ‘Hayes' was entered. Following this, i. e., on March 20, 1961, the court entered judgment against the defendant ‘Hayes', and in favor of the plaintiff, in the sum of $25,000 as principal, $4791.67 as interest and $19.50 for costs. On August 28, 1961, Continental Casualty Company, which had issued the attachment release bond, filed a notice of its intention to move the court, on September 1, 1961, for an order vacating the judgment entered against the defendant ‘Hayes' and to permit it to intervene and defend the action on behalf of itself and that defendant; on August 31, 1961, filed a notice of its intention to move the court, on September 22, 1961, for an order setting aside the default of the defendant ‘Hayes' and the aforesaid judgment ‘as void,’ and stated therein that: ‘This notice shall supersede notice of hearing of said motion on September 1, 1961.’ On September 29, 1961, the court mode its order granting ‘the motion of Continental Casualty Company for an order setting aside the default of Hayes Cal Builders, Inc. and relieving the said defendant and Continental Casualty Company therefrom, and granting permission to Continental Casualty Company to intervene and answer on its own behalf and for Hayes Cal Builders, Inc.’ Subsequently, the plaintiff died; the executrix and executor of his last will and testament were substituted in his place and stead; and they appealed from the order granting the Casualty Company's motion for an order setting aside the subject default and judgment and permitting it to intervene.

The appellants, who are the substituted plaintiffs, in their opening brief advance a number of contentions in support of their claim that the order appealed from is in error. The respondent, i. e., Continental Casualty Company, claims that the judgment entered against the defendant ‘Hayes' was void on its face and that, for this reason, the trial court was authorized to set it aside, at any time, on its own motion, relying upon the rule applied in Olivera v. Grace, 19 Cal.2d 570, 574, 122 P.2d 564, 140 A.L.R. 1328; City of Salinas v. Luke Kow Lee, 217 Cal. 252, 254, 18 P.2d 335, and Montgomery v. Norman, 120 Cal.App.2d 855, 858, 262 P.2d 360; also claims that, for the same reason, the trial court was authorized to permit it to intervene and defend the action because the defendant ‘Hayes' had failed to do so, citing Drinkhouse v. Van Ness, 202 Cal. 359, 260 P. 869, in support of this claim; thus, eliminates the necessity of considering most of appellants' contentions; and appropriately limits the issues on appeal.

The primary premise in support of the respondent's position is the alleged invalidity of the judgment on its face. Unless its contention in this regard is sound, the order of the trial court was in error, because the motion to set aside the defendant's default, concededly, was made more than six months after its entry; the judgment based thereon was not subject to a direct attack under § 473 of the Code of Civil Procedure after the lapse of this six-month period (Title Insurance, etc., Co. v. King, etc., Co., 162 Cal. 44, 120 P. 1066); such a proceeding could be instituted only by a party to the action (Difani v. Riverside County Oil Co., 201 Cal. 210, 214, 256 P. 210); and a void judgment may be set aside by the court on its own motion, after the six-month period, only if the alleged invalidity appears on the face of the judgment roll. (Canadian, etc., Co. v. Clarita, etc., Co., 140 Cal. 672, 674, 74 P. 301; Petition of Furness, 62 Cal.App. 753, 756, 218 P. 61.)

It is the contention of the respondent that the subject judgment is void because, due to lack of proper notice, the trial court had no jurisdiction over the proceedings which resulted in the order striking the answer of the defendant ‘Hayes' and entering its default; that notice to answer interrogatories, notice of motion to strike the defendant's answer for failure to answer said interrogatories, and notice of motion to enter default, were given to the defendant, as such, on the theory that it was appearing in the action in propria persona; that a corporation may not represent itself in a legal proceeding (Paradise v. Nowlin, 86 Cal.App.2d 897, 898, 195 P.2d 867); that such notices should have been but were not given to the defendant's attorneys of record; and that notice to the corporation did not confer jurisdiction on the court to proceed in the premises. However, the record before us does not disclose on whom these notices were served. In any event, whether a judgment is void on its face may be determined only from a consideration of the judgment roll alone (Borenstein v. Borenstein, 20 Cal.2d 379, 381, 125 P.2d 465; City of Salinas v. Luke Kow Lee, supra, 217 Cal. 252, 255, 18 P.2d 335; Canadian, etc., Co. v. Clarita, etc., Co., supra, 140 Cal. 672, 675, 74 P. 301; Petition of Furness, supra, 62 Cal.App. 753, 756, 218 P. 61); any claimed invalidity based on lack of jurisdiction must appear therefrom (Petition of Furness, supra, 62 Cal.App. 753, 756, 218 P. 61); matters not included in the judgment roll may not be considered (Borenstein v. Borenstein, supra, 20 Cal.2d 379, 381, 125 P.2d 465; People v. Davis, 143 Cal. 673, 675, 677, 77 P. 651); and the notices in question, the affidavits of service thereof, or the instruments purporting to effect a substitution of attorneys, are not a part of the judgment roll. For the purpose at hand, the judgment roll included ‘the pleadings, all orders striking out any pleadings in whole or in part, * * * and a copy of the judgment’ (Code Civ.Proc. § 670), and did not include motions or notices of motions (Overton v. Noyes, 177 Cal. 450, 454, 170 P. 1110; Totten v. Barlow, 165 Cal. 378, 380, 132 P. 749; Prescott v. Grady, 91 Cal. 518, 519, 27 P. 755; Sievers v. Pacific Gas & Elec. Co., 57 Cal.App.2d 455, 134 P.2d 850; Shuey v. Bunney, 4 Cal.App.2d 408, 411, 40 P.2d 859; Spaulding & Company v. Chapin, 37 Cal.App. 573, 578, 174 P. 334), affidavits of service of notices (Jacks v. Baldez, 97 Cal. 91, 92, 31 P. 899; Dimick v. Campbell, 31 Cal. 238, 240; Yurkas v. Zampatti, 49 Cal.App.2d 95, 96, 121 P.2d 17; Hurley v. Lake County, 113 Cal.App. 291, 295, 298 P. 123), or, by analogy, a notice to answer interrogatories, affidavit of service thereof, substitution of attorneys or notice of such substitution. It does not appear from the judgment roll herein that the defendant attempted to appear in propria persona or that any jurisdictional notices were served upon it rather than upon its attorneys of record. The factual premise upon which the respondent Casualty Company bases its contention of invalidity is not established by the judgment roll.

Where, as in the instant case, an attack upon a judgment must be determined by a consideration of the judgment roll alone ‘every presumption is in favor of the validity of the judgment, and any condition of facts consistent with its validity will be presumed to have existed rather than one which will defeat it.’ (City of Salinas v. Luke Kow Lee, supra, 217 Cal. 252, 256, 18 P.2d 335, 337; Borenstein v. Borenstein, supra, 20 Cal.2d 379, 381, 125 P.2d 465; People v. Davis, supra, 143 Cal. 673, 677, 77 P. 651; Canadian, etc., Co. v. Clarita, etc., Co., supra, 140 Cal. 672, 674, 74 P. 301.) Nothing appears in the judgment roll before us in conflict with the aforesaid presumption of validity, and the trial court's implied finding to the contrary is without legal foundation.

The order appealed from is reversed.

COUGHLIN, Justice.

GRIFFIN, P. J., and BROWN, J., concur.