Burrows v. Burrows

California Court of Appeal Dec 20, 1935 No. Civ. 5440Published

Before: Jamison

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Holding. The court held that the defendant entered a general appearance in the prior divorce action by seeking relief beyond jurisdictional challenges, thereby curing defective service and rendering the judgment immune to collateral attack. Furthermore, the court held that the judgment could not be impeached by evidence outside the judgment roll.

Issues

Whether the defendant's prior motions constituted a general appearance, curing defective service of summons.
Whether the divorce judgment is subject to collateral attack regarding the ownership of property held in joint tenancy.

Disposition. Affirmed

Quotations verified verbatim against the opinion

“The court therefore having acquired jurisdiction of the subject-matter and of the person of the defendant in the divorce action, it cannot be said that its judgment was void, and not being void it is not subject to collateral attack.”

“A party making a collateral attack upon a judgment or order must show by the record that the court did not have jurisdiction, and the action of the trial court cannot be im-. peached by any matter outside of the record.”

JAMISON, J.,

pro tem.

This is an action to quiet title to certain real estate. Plaintiff based his title upon a judgment in a divorce action theretofore had between the parties to this action. Plaintiff recovered judgment, and from this judgment defendant appeals.

Respondent introduced in evidence the judgment roll in the divorce action and rested. Defendant then ointroduced two deeds conveying the land in controversy to the respondent and appellant as joint tenants.

Appellant contends that the attempted service of summons in the divorce action was defective and void, and this contention is admitted by respondent.

Respondent maintains that the defect in the service of the summons was cured by the general appearance of defendant in the divorce action, and in support thereof he cites the motion of defendant to strike out and vacate portions of the interlocutory decree of divorce and the appeal from the order made upon such motion, the appeal from the interlocutory decree and the appeal from the order denying the motion to annul and vacate the order declaring void the order for the publication of the summons. These appeals were dismissed by the Supreme Court.

It is the well-settled rule that if a party defendant raises any question other than that of jurisdiction or asks for any relief which can only be granted upon the hypothesis that

[751]

the court has jurisdiction of his person, his appearance is general, though termed special, and he thereby submits to the jurisdiction of the court as completely as if he had been regularly served with summons.

(Security Loan & Trust Co.

Boston & South Riverside Fruit Co.,

126 Cal. 418 [58 Pac. 941, 59 Pac. 296] ;

Olcese

Justice’s Court,

156 Cal. 82 [103 Pac. 317].)

Burrows v. Burrows

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JAMISON, J.,

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