CARTER, J. I dissent.
I do not agree that the finding of the trial court in the annulment action brought by Alberta to the effect that “the Court, therefore, makes no findings concerning the character of the property set out in the first cause of action of [Alberta’s] complaint” and the conclusion of law that “the Court, finding both parties at fault' in the purported marriage, declines for lack of jurisdiction to make any award of property alleged to be community in character,” constituted a binding determination of the property issue so as to constitute a bar to the present actions. It was, in my opinion, a specific declaration that the issue had not been adjudicated.
“There can be no doubt that the dismissal of an action or denial of relief for want of jurisdiction is not a judgment on the merits, and cannot prevent the plaintiff from sub[683]sequently prosecuting his action in any Court authorized to entertain and determine it. No question other than the jurisdictional one is concluded by such a judgment, since after the Court has determined its lack of jurisdiction, any further finding or judgment as to the matters alleged is wholly ineffective. . . . Refusal to pass on a particular matter for lack of jurisdiction is not an adjudication of it.” (Freeman on Judgments, 5th ed., vol. 2, p. 1546, § 733. (In Slaker v. McCormick-Saeltzer Co., 179 Cal. 387, 389 [177 P. 155], this court said: “Looking merely to the judgment in the foreclosure suit, it is very plain that the court did not therein undertake to pass upon the merits of the controversy between Slaker and the McCormick-Saeltzer Company. What it did was to decline to determine that controversy, for the reason that it was without jurisdiction, in that action, so to do. Whether the holding that it had no jurisdiction was sound or erroneous is not a question for consideration here. The essential point is that there was no adjudication of the merits. ...” (Emphasis added.) It is elemental that a judgment which has not been rendered on the merits is not res judicata (Campanella v. Campanella, 204 Cal. 515 [269 P. 433] ; Goddard v. Security Title Ins. & Guar. Co., 14 Cal.2d 47, 52 [92 P.2d 804]; Gonsalves v. Bank of America, 16 Cal.2d 169, 173 [105 P.2d 118]; Everts v. Blaschko, 17 Cal.App.2d 188 [61 P.2d 776]; Matteson v. Klump, 100 Cal.App. 64 [279 P. 669]; Helvey v. Castles, 73 Cal.App.2d 667 [167 P.2d 492]; Jacobs v. Norwich Union Fire Ins. Soc., 4 Cal.App.2d 1 [40 P.2d 899] ; Miller v. Ambassador Park Syndicate, 121 Cal.App. 92 [9 P.2d 267]; Taylor v. Darling, 22 Cal.App. 101 [133 P. 503]; Security T. & S. Bank v. Southern Pac. Co., 214 Cal. 81 [3 P.2d 1015]; Scheeline v. Moshier, 172 Cal. 565 [158 P. 222]).
What the majority is saying is, in effect, this: When the trial court determined it had no jurisdiction to decide the question of property, it was really a determination on the merits that neither party was entitled to relief and therefore “tantamount to a dismissal of the respective claims of the parties with respect to their property interests.” The trial court specifically made no finding as to the character of the property. As in the Slaker case, it declined to determine the controversy for the reason that it felt it was without jurisdiction. “Whether the holding that it had no jurisdiction was sound or erroneous is not a question for consideration here. The essential point is that there was no adjudication [684]on the merits. ...” In order to reach the conclusion reached by the majority, too many “ifs” are involved. First it is said “if Archie advanced the theory of recovery” now relied on, the court erred in holding that the doctrine of pari delicto prevented relief. Then that “if” is discarded with the statement that “it does not appear that Archie” did seek to establish his interest on the theory now advanced. Secondly, it is said “if the court in the annulment action erroneously applied the doctrine of pari delicto to deny relief on the theory now advanced, Archie’s remedy was by appeal.” Then it is said: “On the other hand, if Archie failed to present the present theory of recovery in the former action, it is too late for him to do so now.” The rule set forth in Krier v. Krier, 28 Cal.2d 841 [172 P.2d 681], is not applicable here. When a court specifically declines to pass upon an issue, the rule as to issues involved directly, or necessarily involved by implication, does not apply.
Before the trial court could reach any conclusion with respect to the respective property interests involved, it had first to determine the character of the property. This it did not do. That no determination was in fact made is borne out by the language used in the conclusion of law wherein comment is made concerning the “alleged” community character of the property. As we said in Stark v. Coker, 20 Cal.2d 839, 840, 843 [129 P.2d 390], “While it is true that as a general rule a judgment is a bar as res judicata not only as to a subsequent action on the same matter actually determined, but also as to all issues that might have been litigated as incident to or essentially connected with the subject matter of the litigation and every matter coming within its legitimate purview (Code Civ. Proc., §§1908, 1911; 15 Cal.Jur. 142 et seq.), it is also true that that only is adjudged in a former judgment which appears upon its face to have been adjudged or which was actually and necessarily included therein or necessary thereto. (Code Civ. Proc., § 1911.) And when it affirmatively appears that an issue was not determined by the judgment, it obviously is not res judicata upon that issue. A judgment is not an adjudication as to matters which the court expressly refrains from determining. (Watson v. Poore, 18 Cal.2d 302 [115 P.2d 478] ; 15 Cal.Jur. 150.)” (Emphasis added.)
If we were not faced with the specific finding that no determination was made as to the character of the property, the position taken in the majority opinion might be entitled [685]to more credibility. The rule I have just set forth as stated in the Slaker case is recognized by the majority, but nevertheless, the conclusion is reached that since the decision of the trial court on the jurisdictional question was based upon a determination of the merits “of an issue before the court, it constitutes a binding determination of that issue.” It seems to me to be inescapable that before the trial court could make a binding determination of the property issue based on the merits, it must, first, determine whether it had jurisdiction to make such determination, but it expressly held that it had no jurisdiction to determine such issue and refused to determine it.
It is my view that the majority opinion is clearly in conflict with the rule set forth in Freeman on Judgments (supra) and Slaker v. McCormick-Saeltzer Co., supra, as well as Stark v. Coker, supra. The rule announced in the majority opinion extends the doctrine of res judicata beyond its intended scope in that a majority of this court there concludes, in the face of a clear statement by the trial court to the contrary, that an issue was finally determined so as to constitute a bar to a second action. The logical result of the conclusion reached by the majority is to deprive the plaintiff in such an action of his day in court.
I would affirm the judgments.
Shenk, J., and Schauer, J., concurred.
Respondent’s petition for a rehearing was denied December 29, 1954. Shenk, J., Carter, J., and Schauer, J., were of the opinion that the petition should be granted.