TRAYNOR, J. I dissent.
The majority opinion purports to adhere to “the rule that a judgment in an action in personam by a court having jurisdiction over the subject matter and the parties is not void and subject to collateral attack merely because it may erroneously determine some matter not specifically raised in the pleadings, and not covered by the evidence before the trial court, and that such a judgment is res judicata. ’ ’ It then departs from the [36]rule by holding that the application of the doctrine of res judicata in the present ease would ‘ ‘ defeat the ends of justice or important considerations of policy”; how, any more than in hundreds of other cases where the courts have refused to reexamine final judgments to determine whether or not they were erroneous, is never specified. So cavalier a departure from res judicata throws into question the finality of any judgment and thus is bound to cause infinitely more injustice in the long run than it can conceivably avert in this case. It is an invitation to all unsuccessful litigants to relitigate their cases, for they commonly view judgments against them as erroneous and hereafter can contend with justifiable cause that their cases also present an exceptional combination of circumstances requiring a departure from the doctrine of res judicata.
The Di Carlo case, 3 Cal.2d 225, 235 [44 P.2d 562, 99 A.L.R. 990], relied upon in the majority opinion, is not authority for the reexamination of a final judgment to determine whether under the particular circumstances of the case an injustice has been done. In that case, this court held in accord with the weight of authority (see eases collected in 99 A.L.R. 996) that intermediate accounts of a guardian are not conclusive against a ward but may be reexamined by the prohate court upon a subsequent or final account. It noted that a different rule applies to the intermediate accounts of executors, administrators, and testamentary trustees, by virtue of Probate Code, sections 931 and 1123, and held such cases distinguishable on the ground that an intermediate account of a guardian is made while the adverse party, the ward, is under a disability and usually unable to protect himself. (See also 99 A.L.R. 996 and the cases there collected.) 1 ‘This distinction is sufficient to justify an exception to the normal application of res judicata.” (Guardianship of Di Carlo, supra at 235.) The court did not find the circumstances of the Di Carlo case so unusual as to justify an exception to the application of the doctrine but held merely that such proceedings are not final as against a ward and therefore not within its normal application. A rule that the doctrine of res judicata does not apply to a specific type of order can hardly serve as a basis for a rule that the application of the doctrine depends on the circumstances of a case, which must be reexamined to determine whether the doctrine will serve or “defeat the ends of justice or important considerations of policy. ’ ’
[37]By what test are the trial and appellate courts of this state to determine whether the circumstances of a case are* rare enough to justify a departure from the doctrine of res judicata! The dissenting opinions filed by members of this court demonstrate the difficulty of determining whether a particular judgment defeats the ends of justice or violates important principles of policy. The number of times this court has overruled earlier decisions is a reminder that principles of justice and policy are not static. No test emerges from the turbid generalities of the majority opinion; in fact it precludes any application of the doctrine of res judicata until the courts look behind each judgment to the specific circumstances of each case to determine whether those circumstances involve such considerations of policy or justice as to require a departure from the doctrine. The rule announced in the majority opinion therefore defeats the whole purpose of the doctrine of res judicata by casting the shadow of doubt on the finality of judgments.
The record in this case and the previous litigation between the parties disclose only one ground for holding that the application of the doctrine of res judicata might result in injustice, namely, that the opinion of this court in Mather v. Mather, 25 Cal.2d 582, 585 [154 P.2d 684], directing the particular judgment may have been erroneous. Heretofore it had virtually always been held that the correctness of a previous order or judgment cannot be considered until it has been decided that the doctrine of res judicata is not applicable. “An erroneous judgment is as conclusive as a correct one.” (Panos v. Great Western Packing Co., 21 Cal.2d 636, 640 [134 P.2d 242]; Lamb v. Wahlenmaier, 144 Cal. 91, 95 [77 P. 765, 103 Am.St.Rep. 66]; Edmonds v. Glenn Colusa Irr. Dist., 217 Cal. 436, 446 [19 P.2d 502].) Nor is it material that the error, if any, may be an error made by this court or some other appellate court. (Philbrook v. Newman, 148 Cal. 172, 174 [82 P. 772]; McPhee v. Reclamation District, 161 Cal. 566, 572 [119 P. 1077].)
Consider how often the circumstances of this case have been reviewed. It is necessary, however tedious, to recount the circumstances once more to demonstrate that there are no considerations of policy or justice in this case that warrant a departure from the doctrine of res judicata.
The appeal in this case is from a judgment in an action of interpleader to determine the rights of defendants to a eer[38]tain fund under a property settlement agreement executed in the Territory of Hawaii on June 16, 1933, between A. W. Mather, respondent, and Dorothy Devore Mather (also known as Anna Inez Mather), one of the appellants. Mr. Mather assigned to Mrs. Mather a half interest in a claim and in the interest thereon against the estate of Louis B. Greenfield. The agreement recited that the claim was for $75,000. At the time of the assignment, the principal due on the claim was $38,699. During the litigation between Mr. and Mrs. Mather regarding the validity of the property settlement agreement, the administrators of the Greenfield estate deposited with the clerk of the San Francisco Superior Court the sum of $12,-549.60 on the claim of Mr. Mather. The present appeal was taken by Mrs. Mather and her assignees from a judgment of that court determining that Mr. Mather was entitled to half the fund.
The rights of the parties to the fund in question turn on previous litigation between them, including five appeals to this court. On August 3, 1934, Mr. Mather brought an action against his former wife in the Superior Court of Los Angeles County, hereinafter referred to as the Los Angeles action, to rescind the property settlement agreement, joining as defendants Lessie G. Williams, the Security-First National Bank of Los Angeles, and the administrators of the Greenfield estate. The complaint alleged that Lessie G. Williams, Mrs. Mather’s mother, claimed an interest in some of the property involved in the litigation. She joined with Mrs. Mather in demurrers and in an answer to the complaint. The complaint also alleged that the Security-First National Bank of Los Angeles was acting as Mrs. Mather’s agent and had custody of certain money and securities involved in the litigation. The record fails to disclose any answer filed by this defendant. The complaint also alleged that the administrators of the Greenfield estate paid Mrs. Mather the sum of $7,441 on account of the assignment to her of a half interest in Mr. Mather’s claim against the estate. Mr. Mather sought to have the administrators restrained from making further payments to Mrs. Mather under this assignment.
The administrators of the Greenfield estate answered Mr. Mather’s complaint alleging “That at all times hereinafter mentioned these defendants . . . have held and now hold for the account of whom it may concern, and on account of a claim originally filed by A. W. Mather against the estate of Louis [39]R. Greenfield, deceased, the sum of $12,549.60; that various assignments and notices of assignment have been served upon these defendants affecting the said fund, and among other claimants to said fund there are A. W. Mather, Dorothy Devore Mather, Carl B. Rhodes and Don Lake, and these defendants aver that they are holding the said sum of $12,549.60 subject to the order and direction of the above entitled court.
“Wherefore, these defendants pray that they may be hence dismissed, that they may recover their costs of suit incurred herein, and that they may be released of all further liability toward the parties in the above entitled action, and toward all claimants in and to said fund so held by these defendants. ’ ’
Carl B. Rhodes and Don Lake, referred to in the answer of the administrators of the Greenfield estate, are assignees of Mrs. Mather and are parties to the present proceeding, although they were not parties to the Los Angeles action.
The complaint in the Los Angeles action recited three alleged causes of action against Mrs. Mather based respectively on fraud, on misrepresentation, and on the ground that the agreement was illegal under the laws of Hawaii. After three amendments to the third count of the complaint, a demurrer thereto was sustained without leave to amend, and on March 4, 1935, a judgment was entered that plaintiff (Mr. Mather) recover nothing on the alleged third cause of action. On February 7,1935, Mr. Mather appealed from this judgment. (L. A. No. 15233.) The cause then proceeded to trial on the issues joined in the alleged first and second causes of action, and on March 14,1935, judgment was entered in favor of Mrs. Mather on these causes of action. The judgment provided that plaintiff recover nothing by reason of his complaint and dissolved a temporary injunction restraining the administrators of the. Greenfield estate from making any more payments to Mrs. Mather. Notice of appeal from this judgment was filed, but on the motion of Mrs. Mather, the appeal was dismissed for failure to file a transcript within the required time. (L. A. 15481; see Greenfield v. Mather, 14 Cal.2d 228, 231 [93 P.2d 100].) Meanwhile, Mr. Mather’s appeal from the judgment on the third cause of action was pending, and on March 17, 1936, this court dismissed that appeal on the ground that the judgment was not final and therefore not appealable. (Mather v. Mather, 5 Cal.2d 617 [55 P.2d 1174].)
While these appeals were pending, the present action was commenced as an original action in interpleader by the ad[40]ministrators of the Greenfield estate against A. W. Mather, .'the respondent herein, and Mrs. Mather, Carl B. Rhodes and Don Lake as assignees of Mrs. Mather, the appellants herein. The complaint filed by the administrators set forth the litigation to date and stated that both parties to the Los Angeles action claimed the entire $12,549.60 and that the administrators were ready and willing to pay the money to whomever might be entitled thereto. On August 15, 1935, the San Francisco Superior Court, on motion of the administrators and pursuant to a stipulation of the defendants in this action, directed the administrators to deposit this money with the clerk of the court and discharged the administrators of all claims and demands of the defendants. Mr. Mather and- his former wife and her assignees joined issue by cross-complaints and answers. Mrs. Mather and her assignees claimed that her right to the fund in question had been conclusively determined by the judgments in the Los Angeles action. At' the trial, Mrs. Mather objected to the introduction of any evidence with respect to Mr. Mather’s right to the fund. The trial court sustained this objection and entered judgment for Mrs. Mather on the ground that the judgments in the Los Angeles action were final and binding on the parties. On appeal, this court reversed the judgment of the San Francisco Superior Court on the ground that the Los Angeles judgments were' not final. (Greenfield v. Mather, 14 Cal.2d 228 [93 P.2d 100].)
Thereupon on December 12, 1939 Mrs. Mather had a judgment nunc pro tunc entered in the Los Angeles action purporting to cover the matters litigated in the earlier trial. This judgment stated that in the findings of fact and conclusions of law filed on March 12, 1935, it is determined that “plaintiff take nothing by reason of his complaint, and that said answering defendants have their costs against said plaintiff and that the temporary injunction theretofore allowed [against the administrators of the Greenfield Estate] was dissolved February 27, 1935, and should be dissolved.
“It further appears by the answer of Estate of Louis R. Greenfield, deceased, Edna Greenfield, as Administratrix . . . Herman Wobber and Hugo D. Keil, as Administrators of the Estate of Louis R. Greenfield, deceased, that they are holding the sum of $12,549.60 on part of the claim of A. W. Mather against said Estate which was transferred and assigned by him to Anna Inez Mather by the name of Dorothy Devore Mather, . . . expressly subject to the order and direction of the above [41]court in this action, and that said sum belongs to and should be paid to said defendant Anna Inez Máther. ’ ’
The judgment further provided as follows:
“(1) That plaintiff take nothing by reason of his complaint. . . .
“(2) That the injunction heretofore issued in this action be and the same is hereby dismissed and dissolved as of February 27, 1935.
“ (3) That the answering defendants, Anna Inez Mather and Lessie G. Williams have and recover their costs herein. . . .
“(4) That the Estate of Greenfield, Edna Greenfield as Administratrix, and Herman Wobber and Hugo D. Keil, as Administrators, thereof, do pay to said Anna Inez Mather . . . the sum of $12,549.60, admitted in their hands subject to the order and directions of this court in this action.”
On January 4, 1940, Mr. Mather gave notice of motion to set aside this judgment upon the ground that the motion for entry of judgment was made without notice to the adverse parties and that the judgment was not in accord with the order for entry of judgment or any order for judgment. Judge Hanson, who gave the order for the judgment of December 12, 1939, but who had not presided at the trial of the action, denied this motion. In a memorandum opinion, however, he made the following observations:
“An answer to the complaint was . . . filed by the administrators of the Estate of Louis R. Greenfield, they having been joined as defendants with the defendants above mentioned, wherein it was averred they held the sum of $12,549.60 for such person or persons as might be entitled thereto, depending upon the question as to who was the rightful assignee, if any, of a claim filed by the plaintiff with the said administrators, and that said administrators held said sum ‘subject to the order and direction of this court. ’ The case having gone to trial on the issues made, the court filed its findings and conclusions of law, in which it determined all the issues against the plaintiff and found, among other things . . . that plaintiff transferred ‘one-half of the title standing in his name to the approved claim against the estate of Louis R. Greenfield, deceased. ’ . . .
“At the moment it seems to me that the judgment should, at most, have recited that Anna Inez Mather was entitled to one-half and not all of the $12,549.60 as it recites. I predicate this thought on the finding above referred to. However, I [42]have not had occasion to search the file and it may be that there is' an amended finding or that the recital in the judgment is sustained by some other finding. The file is large and I have no occasion at this time to consider the point for reasons presently to be stated.
‘ ‘ The motion of the plaintiff asks that the judgment I signed be set aside (1) because it is not in accordance with my order of December 7, 1939, granting the motion; (2) that timely notice was not given of the motion. These being the only grounds stated, I can consider none other. ’ ’
Mr. Mather appealed from the judgment of December 12, 1939 primarily on the grounds (1) that the motion for judgment was made without notice; (2) that a judge who had not tried the case made new findings of fact in the recital in the judgment and that the judgment did not conform to the findings made after trial of the case; (3) that the property settlement agreement was illegal under the laws of Hawaii. The District Court of Appeal filed an opinion on April 15, 1942, to the effect that the judgment should be modified to provide that Mrs. Mather was entitled to only half the sum held by the administrators of the Greenfield estate, and as modified should be affirmed. (Mather v. Mather, (Cal.App.) 124 P.2d 625, 628, 630.) Mrs. Mather petitioned for a rehearing. Mrs. Mather’s petition was directed solely to the question of the modification of the judgment. She contended that certain allegations in Mr. Mather’s complaint showed that she was entitled to a judgment awarding her the entire sum and that the new findings followed this complaint. Mr. Mather likewise filed a petition for rehearing seeking a reversal of the judgment and filed a separate brief in reply to Mrs. Mather’s petition for a rehearing on the ground that certain misstatements were contained therein. Mr. Mather contended that the issue as to the extent of the rights of the respective parties in the fund in question was not determined in the trial and was not covered in his complaint. Objections were made to various alleged misquotations from his complaint and from the memorandum opinion of Judge Hanson. In this brief, however, there are several statements that may be interpreted as indicating that Mr. Mather was supporting the position taken by Judge Hanson and by the District Court of Appeal with respect to the rights of the parties in the fund in question in the event the judgment should be affirmed.
The District Court of Appeal granted a rehearing and on [43]June 17, 1942, filed an opinion holding that the judgment was void and that it was therefore not necessary to consider the other questions raised by the parties. (Mather v. Mather, (Cal.App.) 126 P.2d 960, 962.) Mrs. Mather then petitioned this court for a hearing. Her petition was granted, and on March 1, 1943, an opinion was filed by this court modifying the judgment to order the administrators to pay Mrs. Mather “one half of the sum of $12,549.60, admittedly in their hands, subject to the order and direction of the court in this action . . .” and affirming the judgment as so modified. (Mather v. Mather, (Cal.) 134 P.2d 795, 800.)
This court stated in its opinion that the trial court had found “that Anna Inez Mather had but a one-half interest in the claim against the Greenfield estate. That being so, Anna Inez Mather should be entitled to only one-half of the money in the hands of the administrators for payment of the claim, in the absence of anything in the record to the contrary. The record does not show that the entire sum was being held for her.” (Mather v. Mather, supra, 134 P.2d at p. 799; italics added.) Mr. Mather filed a petition for a rehearing, but Mrs. Mather did not. Mrs. Mather opposed this petition, but the court granted it and filed a new opinion on August 27, 1943. In the final opinion on that appeal this court reversed the judgment on the grounds that it was entered without proper notice to Mr. Mather and that it was inconsistent with the findings and conclusions of law made at the trial of the action in providing that Mrs. Mather was entitled to the entire $12,549.60 in the hands of the administrators of the Greenfield estate. (Mather v. Mather, 22 Cal.2d 713, 717-719 [140 P.2d 808].)
Following this decision, the Los Angeles Superior Court entered a judgment substantially the same as the first purported judgments in the Los Angeles action in that it failed to provide for the disposition of the money held by the administrators of the Greenfield estate. Mr. Mather appealed to this court, contending that the validity of the property settlement agreement under the Hawaiian law had not yet been decided by this court and that the judgment failed to follow the decision in Mather v. Mather, 22 Cal.2d 713, supra, because it did not dispose of the $12,549.60. This court in Mather v. Mather, 25 Cal.2d 582, 587 [154 P.2d 684], held that the property settlement agreement was valid but that the judgment violated the directions of this court on the former appeal. Accord[44]ingly, the judgment was reversed with directions to the trial court to include “in its judgment a provision that the sum now held on account of the claim against the Greenfield estate be paid as follows: one-half to the plaintiff, A. W. Mather, and one-half to the defendant Anna Inez Mather. ’ ’
The court noted that “While there appears in the record a complicated mathematical argument whereby the defendant Anna Inez Mather seeks to show that she is entitled to the whole amount of said claim, the point of division has already been finally decided. ...” (Mather v. Mather, supra, 25 Cal.2d at 585.) The argument referred to was substantially the same one presented by Mrs. Mather in her petition for rehearing in the District Court of Appeal in the course of the third appeal from the Los Angeles action. Although she contended that Mr. Mather must have received his full share of the claim because of the small amount of money left in the hands of the administrators of the Greenfield estate, she made no reference to anything in the record that would indicate that any payment had been made to Mr. Mather in excess of the amount admittedly paid to her.
Pursuant to the directions of this court, the Los Angeles Superior Court, in March, 1945, entered a judgment determining “That the sum of $12,549.60 admittedly in the hands of the estate of Louis E. Greenfield . . . subject to the order and direction of the court in this action, be paid as follows: One-half of the said sum of $12,549.60 to plaintiff, A. W. Mather, and one-half thereof to defendant, Anna Inez Mather. . . .” No appéal was taken from this judgment and it has become final. The question before this court in the present proceeding is whether this is a valid judgment binding on the parties to the present action.
On the present appeal, Mrs. Mather again claims the entire amount of the fund, this time on the basis of an offer of proof with respect to payments heretofore made on the claim against the Greenfield estate. This offer of proof was made for the first time in the San Francisco action after the March 1945 judgment of the Los Angeles court had become final, and Mr. Mather had filed a supplemental pleading in the San Francisco interpleader action seeking half the fund on the basis of the Los Angeles judgment. Mrs. Mather and her assignee claim the right to show that the Los Angeles judgment is erroneous with respect to the rights of the parties in the fund in question on the following grounds: (1) The. matter was not litigated [45]in the Los Angeles action; (2) the assignees of Mrs. Mather were not parties to the Los Angeles action; (3) the judgment in the Los Angeles action, insofar as it purports to determine the rights of Mr. and Mrs. Mather to the fund, was fraudulently obtained by Mr. Mather’s concealing from the trial court and this court that he had been fully paid his half interest on the claim. In support of these contentions, Mrs. Mather offered to prove that Mr. Mather signed vouchers of the Greenfield estate acknowledging payments equal to at least half of his approved claim of $38,699 and the accrued interest thereon between the dates of the property settlement agreement and the filing of his complaint in the Los Angeles action in August 1934. According to this offer of proof, Mrs. Mather received only $7,441, and the remainder of her half of the approved claim and interest was withheld by the administrators of the estate and amounted to the entire $12,-549.60. The offer of proof was rejected by the trial court and judgment was entered in accord with the final judgment in the Los Angeles action.
At the time of the appeal in Greenfield v. Mather, 14 Cal.2d 228, supra, the Los Angeles action had not been terminated by a final judgment, and the rights of the parties were therefore not finally determined. Since that time a final judgment has been entered in that action, which was pleaded by Mr. Mather in his supplemental cross-complaint. The judgment in the Los Angeles action is therefore conclusive in the present action insofar as it meets the requirements of res adjudicata or estoppel, (Bennett v. Forrest, 24 Cal.2d 485, 493 [150 P.2d 416]; Williams v. Southern Pac. Co., 54 Cal.App. 571, 576 [202 P. 356]; Rest., Judgments, § 43; 2 Freeman on Judgments (5th ed.), 1925, 1519.)
It is contended that the present action does not involve the same cause of action as that involved in the Los Angeles action on the ground that final determination of that action did not necessitate a determination of the respective rights of the parties in the fund. Even if it be assumed that the two cases do not involve the same cause of action, the Los Angeles judgment, as a final judgment, is effective by way of estoppel and is binding on the parties thereto and their privies with respect to the matters actually litigated. (Code Civ. Proc., § 1908; Sutphin v. Speik, 15 Cal.2d 195, 202, 205 [99 P.2d 652, 101 P.2d 497]; see Panos v. Great Western Packing Co., 21 Cal.2d 636, 637-638 [134 P.2d 242] and cases there col[46]lected; Rest., Judgments, §68; 2 Freeman, op. cit. supra, § 676.) Whether or not consideration was given at the original trial in Los Angeles, to what was the extent of the rights of Mr. Mather and Mrs. Mather in the fund in question that question has been the main one in the litigation between the parties in the last two appeals to this court. This court has expressly held that the question was put in issue by the answer of the administrators of the Greenfield estate, and a final judgment in the Los Angeles action has been entered expressly dividing between Mr. Mather and Mrs. Mather the sum of $12,549.60 held by the administrators of the Greenfield estate subject to the orders of the Los Angeles court.
It follows that unless the final Los Angeles judgment is void and subject to collateral attack, Mrs. Mather is bound by the determination of the Los Angeles court that she is entitled to only half the sum of $12,549.60 that was still due on the claim against the Greenfield estate at the time the administrators filed their answer in the Los Angeles action. Mrs. Mather contends, however, that the question of the respective rights of the parties in this fund was not in issue in the Los Angeles action, on the ground that the answer of the Greenfield estate was not served on her and that there was no evidence presented at the trial of that action with respect to the extent of their rights, the sole issue at the trial having been the validity of the agreement between Mr. and Mrs. Mather under which the latter claims an interest in the fund. It was Mrs. Mather, however, who had the judgment of December 12, 1939, entered in the Los Angeles action that expressly determined that the matter was put in issue by the answer of the administrators. Moreover, before that judgment was entered she had a judgment entered in San Francisco determining that she was entitled to the whole sum on the ground that her right thereto was finally determined by the first judgments in the Los Angeles action. (Greenfield v. Mather, 14 Cal.2d 228 [93 P.2d 100].) After this litigation and after the question was determined in the Los Angeles action and argued before this court on several appeals, a final judgment was entered pursuant to the express directions of this court, determining that the matter was in issue in the Los Angeles action and that Mrs. Mather was entitled to only half the fund in question. Regardless of whether the Los Angeles judgment and the opinions on which it is based are erroneous, they are not void and not subject to collateral attack.
[47]Although there is language in cases such as Baar v. Smith, 201 Cal. 87, 98 [255 P. 827], to the effect that a judgment that determines a matter not specifically put in issue by the pleadings or covered in the evidence at the trial is not only erroneous but void and subject to collateral attack, such cases have been distinguished on the ground that in those cases “the question of ‘validity’ of the judgment was being considered in connection with an appeal from the judgment. . . . None of these cases would justify a conclusion that the prior judgment must be declared void.” (Kupfer v. Brawner, 19 Cal.2d 562, 564-565 [122 P.2d 268], citing cases containing such dicta.) A judgment is subject to collateral attack only when the court lacks jurisdiction “over the cause, over the parties, and over the thing, when a specific thing is the subject of the judgment.” (Code Civ. Proc., § 1917.) Since the judgment in the present case was in personam, no problem of the jurisdiction over a specific thing or in rem is involved in this case. An in personam judgment by a court that has jurisdiction over the subject matter and over the parties is therefore not void and subject to collateral attack merely because it may erroneously determine some matter not specifically raised in the pleadings and not covered in the evidence before the trial court. (Ex parte Bennett, 44 Cal. 84, 87; Kupfer v. Brawner, 19 Cal.2d 562, 564 [122 P.2d 268]; Estate of Keet, 15 Cal.2d 328, 333-335 [100 P.2d 1045].)
Even if it is assumed therefore that this court erroneously determined that the answer of the administrators of the Greenfield estate put in issue the rights of the parties, that determination and the judgment based thereon is not void, “ [t]he scope of a judgment, when collaterally attacked, is not limited to the factual or legal points expressly urged by counsel or considered by the court; it extends to matters which could have been raised and considered in the particular proceedings under the particular pleadings.” (Estate of Keet, supra, 15 Cal.2d at p. 334.) The principal issue raised by the pleadings of Mr. and Mrs. Mather was the validity of the property settlement agreement, including the provision for an equal division of the claim held by Mr. Mather against the administrators of the Greenfield estate. The complaint of Mr. Mather put in issue the right of Mrs. Mather to any interest in the claim. It cannot seriously be argued therefore that the trial court lacked jurisdiction to determine the rights of Mrs. Mather in the amount still due on the claim at the time of trial, whether or [48]not such jurisdiction may have been erroneously exercised. The sum held by the administrators subject to the orders of the court was the amount still due on the claim and the trial court on directions from this court determined the interests of the parties in that sum.
Nothing could be gained by attempting to determine whether the error, if any, in the opinions of this court and in the judgment was attributable to Mrs. Mather, who obtained judgments in San Francisco and Los Angeles based on the theory that this issue was actually tried in Los Angeles and who contended before this court that the matter was in issue in Los Angeles, or was attributable to certain statements in a brief filed by Mr. Mather on one of the former appeals. Nor can Mrs. Mather claim that she was deprived of a hearing on this question, for the issue as to the rights of the parties in the fund was determined in the Los Angeles judgment, and the correctness of the determination has been argued at length in the former appeals and considered in the opinions of this court and of the District Court of Appeal. Whatever the cause of error, if there be any, the final judgment of the Los Angeles Superior Court conclusively determines the rights of Mr. and Mrs. Mather in the sum of $12,549.60 held by the administrators of the Greenfield estate.
The answer of the administrators referred to the fact that the administrators had received notice of assignments of part of the claim to Carl Rhodes and Don Lake. Both Rhodes and Lake are assignees of Mrs. Mather and were joined as defendants in the San Francisco interpleader action. It is contended by Mrs. Mather and her assignees that the Los Angeles judgment is not conclusive on the rights of the parties to the present action, on the ground that the assignees were not parties to the Los Angeles judgment. A final judgment, however, operates as res judicata and by way of estoppel, binding not only the actual parties to the judgment but those persons who are in privity with them. (Code Civ. Proc., § 1908; Bernhard v. Bank of America, 19 Cal.2d 807, 811 [122 P.2d 892]; Rest. Judgments, §83; 1 Freeman, op. cit. supra, 959.) The pleadings of Mrs. Mather and her assignees refute the assignees’ claim that they are not bound by the Los Angeles judgment to the same extent as Mrs. Mather insofar as it was concerned with the fund. It is admitted in those pleadings that the assignments were made on August 4, 1934. The Los Angeles action was commenced on August 3, 1934, and it is not [49]contended that the assignees, one of whom has been an attorney for Mrs. Mather throughout this litigation, did not have notice of the commencement of the action. Moreover, they joined in Mrs. Mather’s pleadings in which she set up the original purported judgments in that action as a basis for recovery on the former trial of the present action. The Restatement of Judgments, section 89, provides that, “A person who, after the beginning of an action succeeds to the interest of one of the parties is entitled to the benefits of the rules of res judicata with reference to the subject matter; and he is bound by such rules. ...” (See also 1 Freeman, op. cit. supra, 967.) This rule applies in California at least when such persons “have notice, actual or constructive, of the pendency of the action or proceeding.” (Code Civ. Proc., § 1908(2).)
It is also contended that the judgment in the Los Angeles action is not binding on the parties to the present action, because certain persons wbre parties to that action who are not parties to the present action. The parties referred to claimed an interest in some of the property involved in the property settlement agreement but did not claim any interest in the fund in question. Since the title to the fund could be determined without the presence of those parties, their presence in that action is not material with respect to the effect of the judgment in the Los Angeles action on the title to the fund. (Code Civ. Proc., § 1910.)
The assignees of Mrs. Mather claim also that the judgment in the present action should be reversed on the ground that it fails to determine the respective rights of Mrs. Mather and her assignees in her share of the fund. Those parties, however, requested no such determination by the trial court, but in their pleadings alleged that there was no dispute among them and no cause for settlement by the court.
It is contended finally, that the March, 1945 judgment in the Los Angeles action insofar as it relates to the fund was procured by fraud on the part of Mr. Mather and his attorneys. The allegations of fraud are twofold: (1) That at the trial of the Los Angeles action Mr. Mather conspired with his attorneys to conceal payments made to him by the administrators of the Greenfield estate; (2) that Mr. Mather’s briefs on previous appeals contain fraudulent misrepresentations of fact with respect to payments made on the claim by the administrators.
The trial court found that these allegations are untrue. Normally the question whether a judgment was procured by [50]fraud may not be considered on a collateral attack on the judgment but must be determined in an independent action in equity to set aside the judgment for extrinsic fraud. (Estate of McNeil, 155 Cal. 333, 345 [100 P. 1086]; additional cases collected in 15 Cal.Jur. 63.) The finding of the trial court, however, indicates that the court regarded Mrs. Mather’s answer to the supplemental cross-complaint of Mr. Mather as an equitable defense to the judgment in the nature of an action in equity for relief therefrom. (See Rest., Judgments, § 112(e).) For the purposes of the appeal it may be assumed that the answer of Mrs. Mather properly put in issue her right to equitable relief from the judgment for extrinsic fraud. There is no evidence in the record, however, from which we can determine the correctness of the trial court’s finding with respect to the allegation that Mr. Mather was guilty of fraudulent concealment at the time of the trial in the Los Angeles action. In any event, it was unnecessary for the trial court to make the finding, for Mrs. Mather failed to show any basis for equitable relief from the judgment.
If Mr. Mather did conceal any payments made to him before the commencement of the Los Angeles action, there is no allegation or offer of proof sufficient to show that he fraudulently kept Mrs. Mather from sources of evidence that would have revealed this fact. There is nothing in Mrs. Mather’s allegations or offers of proof to indicate that due diligence on her part would not have revealed evidence of such overpayment. The administrators of the Greenfield estate, who allegedly made these payments, were parties to the Los Angeles action and were parties to the present action until dismissed on the stipulation of the defendants. There is nothing in the record to indicate that they were not available at those times to testify as to any payments made on the claim. Even if Mrs. Mather may have believed such testimony unnecessary at those times, she cannot now invoke that belief to prevent the application of the doctrines of res judicata and estoppel by judgment. (Ernsting v. United States, Inc., 206 Cal. 733, 737 [276 P. 103].) Nor can the application of those doctrines be avoided by the claim of newly discovered evidence. (Quirk v. Rooney, 130 Cal. 505, 511 [62 P. 825]; cases collected, 149 A.L.R. 1195, 1198, 1201.)
It is also alleged that Mr. Mather and his attorneys made statements in his briefs on appeals from the various Los Angeles judgments that clearly implied that as a matter of fact he was not paid more than his former wife was paid on this [51]claim. Mrs. Mather has purported to quote several statements from Mr. Mather’s briefs to support her claim of fraudulent misrepresentations. Many of these statements are quoted out of context. In several instances statements quoted as those of Mr. Mather are actually references made to the memorandum opinion of Judge Hanson, who granted the judgment of December 12, 1939, but expressed doubt as to the correctness of its determination with respect to the fund in question. If it is assumed, however, that Mr. Mather was in fact paid more than Mrs. Mather, and if it is also assumed that certain statements in Mr. Mather’s briefs are false, those statements would not justify a reversal in this case.
It has already been observed that Mrs. Mather was not misled into believing that she had no right to the entire sum (see Rest., Judgments, § 121), for she at all times asserted her right thereto, and she has not shown that evidence of the alleged payments, which she now claims would substantiate her right thereto, was not available in time to prevent the alleged error. Mrs. Mather has thus failed to establish a case for equitable relief from the judgment either on the basis of fraudulent concealment at the time of trial or fraudulent misrepresentations during the course of past appeals. “Equitable relief will be given only in a limited number of situations where the judgment was rendered after proceedings in which the present complainant was deprived of an opportunity of presenting adequately his claim or defense (see secs. 119-125) [Rest. Judgments], The distinction between the types of situations in which equitable relief will be given and those in which it will not be given, has sometimes been expressed by saying that equity will not relieve for fraud which leads to an erroneous judgment after a trial which is otherwise fair, but only where a party has been prevented from having a reasonably fair trial. The first situation has been described as resulting from intrinsic fraud or error for which no relief will be given; the second situation has been described as resulting from extrinsic fraud, error or misfortune, for which relief will be granted.” (Rest. Judgments, § 118, comment b; Horton v. Horton, 18 Cal.2d 579, 584 [116 P.2d 605]; Neblett v. Pacific Mutual L. Ins. Co., 22 Cal.2d 393, 397 [139 P.2d 934]; eases collected 23 Cal.L.Rev. 79.) Even in jurisdictions that make no distinction between extrinsic and intrinsic fraud, relief from a judgment on the ground of fraud cannot be obtained without a showing of due dili[52]gence. (See eases collected, 36 Ill.L.Rev. 894, 896.) In any event, the allegations “that the other party [Mr. Mather] was aware of the invalidity of his claim or defense is not of itself a sufficient basis for equitable relief against the effects of the judgment.]’ (Rest. Judgments, § 121, comment a.)
This rule, soundly rooted in public policy, is designed for the benefit of honest litigants, for “the interests of the public and the litigants require that ordinarily where a final judgment has been rendered, there should be no opportunity to relitigate the same matters. Public policy requires that pressure be brought upon litigants to use great care in preparing cases for trial and in ascertaining all the facts.” (Rest, Judgments, § 126, comment a.) The failure to give relief in such cases is in the interest of “honest litigants who, long after obtaining a judgment and possibly after means of disproving the charges have disappeared, might be faced with equitable proceedings alleging such fraud.” (Ibid., comment c.)
The judgment should be affirmed.
Spence, J., concurred.
Respondent’s petition for a rehearing was denied July 1, 1948. Edmonds, J., Traynor, J., and Spence, J., voted for a rehearing and the following opinion was then filed:
EDMONDS, J. For the reasons stated by Mr. Justice Traynor, I concur in his conclusion that the judgment in this case should have been affirmed. The rule of res judicata is designed “to prevent vexatious litigation and to require the parties to rest upon one decision in their controversy. . . .” (Miller & Lux, Inc. v. James, 180 Cal. 38, 44 [179 P. 174].) No doctrine in the law is more fundamental and it is vital to the orderly administration of justice. Heretofore, the fact that a prior decision may have been erroneous has not been a ground for allowing a retrial of the issues previously determined and fixed by a judgment. Courts should stand firm against a policy of endless litigation in which nothing is ever decided with certainty.
I, therefore, vote for a rehearing.