BURTNETT v. KING (1948)

Edward M. Burtnett, when sued for divorce by his wife, defaulted, and she obtained a decree which included an award of the community property.   Later, he commenced the present action to quiet title to a one-half interest in the real property assigned to the wife by that decree upon the ground that, in the prior litigation, the court had no jurisdiction to determine the property rights of the parties.   His appeal from an adverse judgment presents only the question of the validity of the decree of divorce insofar as the provisions in regard to property interests are concerned.

The complaint for divorce stated a cause of action upon the ground of extreme cruelty.   In addition, it alleged that “the community property of plaintiff and defendant consists of the interest of plaintiff and defendant in the real property and dwelling house * * * ” in San Mateo County and certain personal property.   There was no request for an award of the community property but the prayer, in addition to seeking the judgment of divorce, asked for an order restraining the husband “from being upon or at the home * * * ” and for “such other and further relief as may be just and equitable.”   Upon a hearing, the court, after finding that the real and personal property was community property, ordered that it be assigned to the wife.   The defendants are successors in interest of Mrs. Burtnett.

In a default action, the court may not grant relief beyond that which was prayed for in the complaint.  § 580, Code Civ.Proc.   But a judgment in excess of the prayer of the complaint is not necessarily void and thereby subject to collateral attack.   Only to the extent that it refers to a subject matter not embraced within an issue which was before the court, is the judgment void.   Under such circumstances, the court has no jurisdiction over the subject matter, and its determination is a nullity.   But where the subject matter is before the court, through appropriate allegations of the complaint, a judgment which exceeds the demands of the prayer is erroneous and subject to direct, but not to collateral, attack.

In an action where the jurisdiction of the court depends upon the amount of the “demand,” ordinarily the prayer is determinative of the question.   Miller v. Carlisle, 127 Cal. 327, 330, 59 P. 785;  and see Becker v. Superior Court, 151 Cal. 313, 90 P. 689.   The right to adjudicate is not always to be determined by looking to the measure of the relief sought;  it may be “found in the nature of the case as made by the complaint.”  Silverman v. Greenberg, 12 Cal.2d 252, 254, 83 P.2d 293, 294.   As stated in section 1917 of the Code of Civil Procedure, “The jurisdiction sufficient to sustain a record is jurisdiction over the cause, over the parties, and over the thing, when a specific thing is the subject of the judgment.”

To support his contention that, in a divorce action, a decree which disposes of community property without a prayer to that effect is void, the appellant relies upon Lang v. Lang, 182 Cal. 765, 190 P. 181;  Metropolitan Life Ins. Co. v. Welch, 202 Cal. 312, 260 P. 545;  Balaam v. Perazzo, 211 Cal. 375, 295 P. 330;  and Grant v. Grant, 52 Cal.App.2d 359, 126 P.2d 130.   But these decisions are not factually similar to the present litigation nor are they authority for the appellant's position.

In the Lang case, the complaint contained no allegation with reference to the community homestead of the parties;  it was not mentioned in the prayer, and no disposition was made of it by the interlocutory decree.   The final decree, however, set apart the homestead to the plaintiff.   When title to the property was challenged, it was held that the question of property rights was not before the trial court, and consequently it was without jurisdiction to make any order with reference to such rights.   The final decree of divorce, therefore, was void to the extent that it disposed of the property of the parties and subject to collateral attack.

By the divorce decree which was the subject of the controversy in Metropolitan Life Ins. Co. v. Welch, supra, plaintiff had been awarded [202 Cal. 312, 260 P. 546] “all of the community property of the plaintiff and defendant.”   It was held that, because the insurance policy was not mentioned in the complaint, the decree was a nullity as to it.   However, the further determination that the void judgment was res judicata is disapproved.   In each of the other two cases relied upon by the appellant, the judgment was held to be a nullity and subject to collateral attack upon the ground that no reference to the specific property which was the subject of the judgment was contained in either the body of the complaint or the prayer.

This rule was applied in considering a decree which determined the property interests of the parties to an action for separate maintenance.   The plaintiff had alleged the existence of community property, describing it, and the husband's ability to pay for her support.   The prayer requested “a reasonable sum” for that purpose, as well as for attorneys fees and costs, and for an order restraining dissipation of the assets by the husband.   The decree required the husband to pay specified amounts to her for her separate maintenance, and she also was awarded certain of the property described in the complaint.   Upon collateral attack, this court held that the allegations as to the ability of the husband to pay support and the itemization of the community property “were sufficient to notify him that the disposition of the community property and his ability to make the payments requested were issuable facts.”   Horton v. Horton, 18 Cal.2d 579, 583, 116 P.2d 605, 607.   The Lang case was distinguished upon the basis that, although it correctly stated “the rule that in such circumstances the allowance of relief beyond the scope of the pleading is a nullity,” it was not in point “because the wife's pleading amply sustains the amended decree as rendered.”  18 Cal.2d at page 583, 116 P.2d at page 607.

It may be noted that the courts have gone a step further in upholding decrees of divorce which provide for the payment of alimony although the complaints did not include a prayer for such relief.   The decisions in those cases have been placed upon the ground that, because the support of a wife “is so germane to the cause of action for divorce”, Parker v. Parker, 203 Cal. 787, 793, 266 P. 283, 285, a judgment which includes such relief is within the exercise of jurisdiction and therefore not void, although it is erroneous.  Bowman v. Bowman, 29 Cal.2d 808, 812, 178 P.2d 751, 170 A.L.R. 246;  Miller v. Superior Court, 9 Cal.2d 733, 740, 72 P.2d 868;  Karlslyst v. Frazier, 213 Cal. 377, 381, 2 P.2d 362;  Parker v. Parker, supra;  Cohen v. Cohen, 150 Cal. 99, 88 P. 267, 11 Ann.Cas. 520.

In the Burtnett divorce complaint, the community property was appropriately described and the prayer sought an order restraining the husband “from being upon or at the home * * * ” and for “such other and further relief as may be just and equitable.”   Just as in the Horton case, the allegations and the prayer were sufficient to notify the appellant here that the disposition of the community property was an issuable fact.   They were also sufficient to bring the property within the jurisdiction of the court and the decree, although erroneous, is not void and subject to collateral attack.

The judgment is affirmed.

I concur in the judgment.

I agree that, as stated in the opinion of Mr. Justice CARTER, the complaint is insufficient to raise the issue concerning the property rights of the parties and that the judgment awarding the property was therefore outside the issues of the case.   But it does not follow that such a judgment is in all cases subject to collateral attack.

On the contrary, it would seem clear that where the defendant, with knowledge of the improper judgment, whether merely erroneous or in excess of jurisdiction, took no steps to attack it directly, and thereafter the rights of a bona fide purchaser from the defendant intervened, a collateral attack on the judgment would operate to defeat rather than to achieve the ends of justice.

I dissent.

In this case the complaint for divorce alleged that the community property of the plaintiff wife and defendant husband “consists” of certain described real property.   Nothing whatsoever other than that is said about the property.   The prayer does not demand an award of the property.   It makes no mention at all of it.   In passing it may be observed that the complaint alleges that said defendant will inflict bodily violence upon plaintiff unless restrained.   The prayer asks that such violence be restrained, and incidentally, to carry out that purpose, that defendant be ordered to stay away from the “home of plaintiff and defendant.”   Rather than advising defendant that the rights in the home would be adjudicated as indicated by the majority opinion, the clear implication is that it is conceded that the property was the home of both, and would remain such, but that defendant should not go there during the pendency of the action.   The only reasonable interpretation of the pleading is that plaintiff was not going to claim the home as hers, and she was recognizing defendant's interest therein.   The only prayer that could possibly be said to embrace a demand for the property was a general prayer for such other relief as may be proper.   On the basis of that allegation alone as to the character of the property as community, the majority opinion holds that a default judgment awarding it to plaintiff was not void although conceding it was erroneous.

It should first be noted that it is obvious that defendant had no notice or warning that the property would be affected by a default judgment.   On the contrary, as above seen, the only indication was otherwise, and in addition, by reason of plaintiff's silence on the subject in her prayer, defendant would properly assume that the rights to the property were not to be litigated in that action.   To hold, as does the majority, means that this court sanctions a procedure under which a defendant may be trapped by a default judgment.   Merely alleging that the property was community in no way challenged his right to retain his interest therein.   Rather it admitted he should.   He would feel wholly safe in agreeing to that allegation without any thought that his interest in the property was in jeopardy.

The law on the subject commences with the statute:  “The relief granted to the plaintiff, if there be no answer, cannot exceed that which he shall have demanded in his complaint;  but in any other case, the court may grant him any relief consistent with the case made by the complaint and embraced within the issue.”  [Empahsis added.]  Code Civ.Proc., § 580.   In cases where no answer has been filed and a default has been entered, but the clerk may not enter a default judgment, the plaintiff may apply to the court “for the relief demanded in the complaint,” and after evidence is heard, the court may render a default judgment “for such sum (not exceeding the amount stated in the complaint ), as appears by such evidence to be just.”  Code Civ.Proc., § 585(2).   Manifestly “demanded” means claimed, asserted a right to or prayed for.   That there was no demand for the property in the instant case is plain, that is, not only did the relief accorded exceed the demand, it adjudicated property rights when none were ever asserted, claimed or prayed for.

It is equally clear that by the use of the mandatory language of the statute (the court cannot give a default judgment in excess of the demand), the court's jurisdiction to render default judgments can be exercised only in the way authorized by statute.   It cannot act except in a particular manner, that is, by keeping the judgment within the bounds of the relief demanded.   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.   See, Tabor v. Superior Court, 28 Cal.2d 505, 170 P.2d 667;  Lord v. Superior Court, 27 Cal.2d 855, 168 P.2d 14;  Redlands High School Dist. v. Superior Court, 20 Cal.2d 348, 125 P.2d 490;  Abelleria v. District Court of Appeal, 17 Cal.2d 280, 109 P.2d 942, 132 A.L.R. 715;  Fortenbury v. Superior Court, 16 Cal.2d 405, 106 P.2d 441;  Evans v. Superior Court, 14 Cal.2d 563, 96 P.2d 107;  Rodman v. Superior Court, 13 Cal.2d 262, 89 P.2d 109;  Spreckels Sugar Co. v. Industrial Accident Commission, 186 Cal. 256, 199 P. 8.   Certainly no statutory method of procedure or limitation on power could be more clearly expressed than that set forth in section 580 of the Code of Civil Procedure, supra.   Thus the court wholly lacked jurisdiction to render a judgment affecting the community property, for there was no demand for such relief.   Having no jurisdiction the judgment was not res judicata on this issue.   It was void.

The essence of the policy underlying section 580 of the Code of Civil Procedure, supra, is that in default cases, defendant must be given notice of what judgment may be taken against him—a policy underlying all precepts of jurisprudence and protected by our constitutions.   If a judgment other than that which is demanded is taken against him, he has been deprived of his day in court—a right to a hearing on the matter adjudicated.   In the instant case precisely such an event occurred.   In cases where the clerk may enter a default judgment as distinguished from a default, he has no power other than that conferred by the statutes.   He must strictly stay within his statutory authorization and a failure to do so renders the judgment void.   Baird v. Smith, 216 Cal. 408, 14 P.2d 749;  Landwehr v. Gillette, 174 Cal. 654, 163 P. 1018;  Farrar v. Steenbergh, 173 Cal. 94, 159 P. 707;  Reher v. Reed, 166 Cal. 525, 137 P. 263, Ann.Cas. 1915C, 737;  Crossman v. Vivienda Water Co., 136 Cal. 571, 69 P. 220;  Wharton v. Harlan, 68 Cal. 422, 9 P. 727;  Junkans v. Bergin, 64 Cal. 203, 30 P. 627;  Tregambo v. Comanche Mill & Mining Co., 57 Cal. 501;  Providence Tool Company v. Prader, 32 Cal. 634, 91 Am.Dec. 598;  Kelly v. Van Austin, 17 Cal. 564;  Potts v. Whitson, 52 Cal.App.2d 199, 125 P.2d 947;  Crofton v. Young, 48 Cal.App.2d 452, 119 P.2d 1003;  Spaulding & Co. v. Chapin, 37 Cal.App. 573, 174 P. 334;  Kimbel v. Osborn, Wyo., 156 P.2d 279, 158 A.L.R. 1079, 1091, 1114;  14 Cal.Jur. 893.   True, the court in those cases spoke of the ministerial character of the clerk's function but the policy there enunciated is based upon the necessity of notice.   It is crystal clear that the lack of it is as grave to defendant whether the clerk or the court renders the default judgment.

It is a settled rule, and has been clearly stated in many recent authorities, that a default judgment by the court that exceeds the demand or gives relief where no demand is made therefor is void as in excess of the court's jurisdiction and not res judicata.  Lang v. Lang, 182 Cal. 765, 190 P. 181;  Metropolitan Life Ins. Co. v. Welch, 202 Cal. 312, 260 P. 545;  Gregg v. Stark, 128 Cal.App. 434, 17 P.2d 766;  Balaam v. Perazzo, 211 Cal. 375, 295 P. 330;  Horton v. Horton, 18 Cal.2d 579, 116 P.2d 605.   It is said in Lang v. Lang, supra, 182 Cal. at page 768, 190 P. at page 182, where the divorce decree adjudicated community property rights where none were mentioned in the pleadings:  “The defendant in that action (plaintiff here) had the right to assume that the judgment which would follow a default on her part would embrace only the issues presented by the complaint and the relief therein prayed.  * * *

“Parties to an action for divorce may submit to the court the simple issue of their right to a divorce without reference to their property.  Coats v. Coats, 160 Cal. 671, 118 P. 441, 36 L.R.A., N.S., 844.   This being so, where a complaint in divorce contains no allegation with reference to property rights, a defaulting defendant should be entitled to assume that the only matter which will be determined by the court is the matter of divorce, and that the question of property rights will be left for consideration and determination in another and separate action.   In addition thereto, it is a well-established rule that in a default case the relief granted cannot exceed the prayer.   Brooks v. Forington, 117 Cal. 219, 48 P. 1073;  Mudge v. Steinhart, 78 Cal. 34, 20 P. 147, 12 Am.St.Rep. 17.   And where relief is given beyond the scope of that asked for, it is a nullity, and may be attacked collaterally, or its effect avoided under the doctrine that it is not res judicata.”  [Emphasis added.]   And in Horton v. Horton, supra, 18 Cal.2d at page 583, 116 P.2d at page 607:  “While all these cases [referring to Lang v. Lang, supra, and others]correctly state the rule that in such circumstances the allowance of relief beyond the scope of the pleading is a nullity, for a defendant has the right to assume that the judgment which would follow a default on his part would embrace only the issues presented by the complaint and the relief therein asked, these authorities are not in point here because the wife's pleading amply sustains the amended decree as rendered.”  [Emphasis added.]

Some cases have said that the judgment is erroneous.  Balfour–Guthrie Inv. Co. v. Sawday, 133 Cal. 228, 65 P. 400;  Longmaid v. Coulter, 123 Cal. 208, 55 P. 791;  Foley v. Foley, 120 Cal. 33, 52 P. 122, 65 Am.St.Rep. 147;  Gage v. Rogers, 20 Cal. 91;  Lattimer v. Ryan, 20 Cal. 628;  Mudge v. Steinhart, 78 Cal. 34, 20 P. 147, 12 Am.St.Rep. 17;  Burke v. Koch, 75 Cal. 356, 17 P. 228;  Pittsburgh Coal Mining Co. v. Greenwood, 39 Cal. 71;  Parrott v. Den, 34 Cal. 79;  Darsie v. Darsie, 49 Cal.App.2d 491, 122 P.2d 64;  Flores v. Smith, 47 Cal.App.2d 253, 117 P.2d 712;  Von Der Kuhlen v. Hegel, 51 Cal.App. 416, 196 P. 913;  Williams v. Reed, 43 Cal.App. 425, 185 P. 515;  Brown v. Caldwell, 13 Cal.App. 29, 108 P. 874;  see, merely reversed, Savings & Loan Soc. v. Horton, 63 Cal. 105.   But none of those cases decided or found it necessary to decide that the judgment was not void.

The cases of Bowman v. Bowman, 29 Cal.2d 808, 178 P.2d 751, 170 A.L.R. 246;  Miller v. Superior Court, 9 Cal.2d 733, 72 P.2d 868;  Karlslyst v. Frazier, 213 Cal. 377, 2 P.2d 362;  Parker v. Parker, 203 Cal. 787, 266 P. 283;  and Cohen v. Cohen, 150 Cal. 99, 88 P. 267, 11 Ann.Cas. 520, are not in point for the reason that there, support money or alimony were involved, and it may be conceded that this issue is so germane to the issue of divorce that a defendant must anticipate an award therefor although there is no prayer to that effect.   In some of the other cases cited above there were other factors giving defendant adequate notice.

It is conceded by the majority that it is erroneous to grant relief in excess of the demand, and all the cases hold at least that.   If it is error, it must be for the reason that the judgment violates section 580 of the Code of Civil Procedure, and obviously, the violation consists of attempting to adjudicate matters beyond the issues made by the complaint.   The only issues that may be litigated in a default proceeding are those presented by the complaint.   As to other issues those are not and cannot be litigated or adjudicated.   It has long been settled that a judgment is not res judicata as to issues that are not or could not be litigated.   In English v. English, 9 Cal.2d 358, 363, 70 P.2d 625, 628, 128 A.L.R. 467, this Court quotes with approval from Corpus Juris:  “The doctrine of conclusiveness of judgments applies to a judgment by default with the same validity and force as to a judgment rendered upon a trial of issues, provided such judgment is regular and valid, and shows distinctly on what count or cause of action it was rested.   But the confession implied from the default is limited to the material issuable facts which are well pleaded in the declaration or complaint, and does not apply to issues which were not raised in the pleadings.   Nor, subject to the rule that the judgment is conclusive as to every fact necessary to uphold it, is a default judgment conclusive, in a subsequent suit on a different cause of action, against any defenses defendant may have, although the same defenses, if pleaded and proved in the former action, would have defeated plaintiff's recovery, because in the absence of a trial and hearing in the first suit, it cannot be said that such matters were adjudicated therein.”

The majority decision in this case strikes at the very foundation of Anglo Saxon justice—due process of law.   How can it be said that a person has been accorded due process of law when he is deprived of his property without notice or hearing?   That is just what will happen in this case if the majority decision stands.   Even without the express statutory provision which we have in this state (Code Civ.Proc., sec. 580), the settled rules of the common law should afford defendant protection from the effect of a judgment rendered against him without notice or hearing.   These rules as well as the mandatory provisions of section 580 of the Code of Civil Procedure have been ignored by the majority.

For the foregoing reasons I would reverse the judgment.

EDMONDS, Justice.

GIBSON, C.J., and SPENCE, J., concur.