PRESTON, J., Dissenting.
I am unable to concur in the conclusion in this ease. I heartily concur, however, in so
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much of the opinion as holds the answer on file to be a sufficient traverse of the allegations of the complaint.
The net result of the situation then is that a defendant who has fully answered the plaintiff’s complaint has, without a hearing or a chance to be heard, had his property taken from him by
ex parte
action of the court. The question may again be stated as follows: Is due process of law satisfied where a defendant has appeared and set up a complete defense to the cause of action against him and yet, having been given no opportunity to be heard, has had entered against him without fault on his part, a judgment depriving him of his property?
It is readily agreed by all that such an act of the trial court is erroneous and may be reviewed upon appeal or other direct attack. The judgment-roll in this case is offered in evidence in a proceeding brought to carry into effect the same judgment. There is grave doubt as to whether the resistance of such an attempt is not itself a direct attack, but for the purposes of this discussion it may be asshmed to be a collateral attack. Is such a judgment void upon collateral attack?
It is a well-settled proposition that any action by a trial court in excess of its jurisdiction is void. The chief distinction between a collateral and a direct attack upon such a judgment is that in a collateral attack the evidence which may be received to show excess of jurisdiction is restricted to the judgment-roll as defined by law at the time of the rendition of the judgment. But where by a resort to such evidence the want of vitality in the judgment is demonstrated, the duty to declare it void is as imperative on collateral as on direct attack. This principle is found, among other places, in the following cases:
People
v.
Greene,
74 Cal. 400, 405 [5 Am. St. Rep. 448, 16 Pac. 197];
People
v.
Davis,
143 Cal. 673, 675, 676 [77 Pac. 651], The latter case was an appeal from an order vacating and setting aside a prior order vacating and setting aside a judgment by default, and there the court said: “Such an order occupies no better position than a judgment that is void upon its face, and, like such a judgment, is assailable wherever and whenever it may be produced, and whether the attack upon it be direct or collateral. In
People
v.
Temple
the attack upon such an order
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was collateral, and the order was held to he a mere nullity. ... As was held in People v.
Greene,
74 Cal. 400, 405 [5 Am. St. Rep. 448, 16 Pac. 197], ‘A judgment which is void upon its face, and which requires only an inspection of the judgment roll to demonstrate its want of vitality, is a dead limb upon the judicial tree, which should be lopped off, if the power so to do exists. It can bear no fruit to the plaintiff, but is a constant menace to the defendant. ’ . . . While it is immaterial in a certain sense whether such a judgment or order be formally set aside, for it neither binds nor bars anyone, still it is well settled that the court whose records are thus encumbered with what is a mere form without substance may at any time formally remove the same by declaring it a nullity. ’ ’
In 15 R. C. L., page 847, section 321, under the heading “Collateral Attack for Want of Notice,” it is said: “It is a fundamental principle of the common law, founded in justice and sound policy, that no judgment or decree affecting the person or property of an individual shall be valid, unless notice, actual or constructive, is given to the individual whose rights are to be affected. Every man is entitled to an opportunity to be heard in a court of law upon every question involving his rights or interests, before he is affected by any judicial decision of the question. Such notice and opportunity to be heard are essential elements of due process of law, and the sentence or judgment of a court without hearing the party or giving him an opportunity to be heard is not a judicial determination of his rights, and is not entitled to any respect in any other tribunal.”
The judgment-roll in the case at bar consists of the pleadings and the judgment (Code Civ. Proc., sec. 670). The pleadings are the original and amended complaint and the answer. The judgment affirmatively shows the following: “In this action the defendants . . . were regularly served with plaintiff’s second amended complaint herein, and defendant P. L. Yarbrough having filed a demurrer thereto, which demurrer was by the court overruled, and said defendant . . . having failed to answer plaintiff’s second amended complaint within the time allowed therefor, and the defendant Elmer PI. Gum, as sheriff of Placer county, California, having failed to answer or demur to said second
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amended complaint, and the legal time for answering having expired, the defaults of said defendants . . . were duly entered according to law. ...”
We then have a case where the answer has been ignored
in toto.
The defendant has been given no hearing and all he has received is a judgment against him, which directs him to deliver by assignment his property to plaintiff. Has he had his day in court under the terms “due process of law” or “law of the land”? It may freely be conceded that where jurisdiction of the subject matter and person are both present, any error, however gross or far-reaching, made by the court in the exercise of its jurisdiction, will not render a judgment void and relief therefrom may not be had by collateral attack. But it must always be remembered that this statement must be held to include the right and opportunity to be heard. If such right is denied, it is as though jurisdiction of the person is repudiated or disclaimed. ‘ ‘ The denial to a party in such a case of the right to appear is in legal effect the recall of the citation to him.” (6 R. C. L., sec. 446, p. 451.)
This is doubtless what Mr. Freeman (1 Freeman on Judgments, 5th ed., par. 360, p. 749), quoted in the majority opinion, means by the use of the following language: “ ... no errors or irregularities in the subsequent proceedings which do not induce a loss of such jurisdiction will avail to defeat the judgment.” In the ease under consideration the court in effect struck out, without cause, the answer of defendant. It was directly effective to “induce a loss” of jurisdiction. The principle here attempted to be stated is elsewhere set forth as follows:
“It is a cardinal principle of our jurisprudence that one shall not be bound or concluded by a judgment, either in respect to his person or property, unles he has had his day in court, by which is meant until he has been duly cited to appear and has been afforded an opportunity to be heard, and upon such hearing to offer evidence in support of his cause.” (5 Cal. Jur., pp. 875, 876, sec. 224.)
“It was a maxim of the common law that no man should be punished without an opportunity of being heard, and it has been broadly stated that due process of law requires an orderly proceeding, adapted to the nature of the case, in
[324]
which the citizen has an opportunity to be heard, and to defend, enforce, and protect his rights. To assert that courts have inherent power to deny all right to defend an action and to render decrees without any hearing whatever is, in the very nature of things, to convert the court exercising such an authority into an instrument of wrong and oppression, and hence to strip it of that attribute of justice upon which the exercise of judicial power necessarily depends. . . . When the right to a hearing is denied, the mere giving of a notice is ineffectual for any purpose within the meaning of the constitutional guaranty. The denial to a party in such a case of the right to appear is in legal effect the recall of the citation to him. For example, ordering one to pay alimony without having had his day in court and a hearing on the question of the marriage, when that is denied, amounts to a taking of his property without due process of law.” (6 R. C. L., sec. 446, pp. 450, 451.)
This principle has many times been recognized in California. The case of
Hite
v.
Hite,
124 Cal. 389 [71 Am. St. Rep. 82, 45 L. R. A. 793, 57 Pac. 227], is cited as authority for the foregoing statement. In
Baker
v.
Baker,
136 Cal. 302 [68 Pac. 971], upon filing the complaint, the court made an order,
ex pa/rte,
requiring the defendant to pay alimony. Such order was held to be unauthorized and void, as the court had not acquired jurisdiction over the person of the defendant at the time it was made, as there had been no service of process in the action or notice of the application for the order. In that case it is said: “No valid order or judgment affecting a person or his property can be rendered against him without a hearing or an opportunity to be heard. This is a rule of law so well understood as to be elementary, at least since the famous Dartmouth College case. As said in
Hite
v.
Hite,
124 Cal. 393 [71 Am. St. Rep. 82, 45 L. R. A. 793, 57 Pac. 229] : ‘To satisfy the requirement of due process of law it is not always necessary that such trial should be afforded as is had in ordinary suits in courts of justice. The hearing allowed must be such as is practicable and reasonable in the particular case. . . . Cooley says, “the opportunity to be heard must be such as the settled maxims of law permit and sanction, and under such safeguards for the protection of individual
[325]
rights as these maxims prescribe for the class of cases to which the one in question belongs. ’ ’ ’ ”
In
McClatchy
v.
Superior Court,
119 Cal. 413, 419 et seq. [39 L. R. A. 691, 51 Pac. 696], this question is again discussed. The phrases “due process of law” and the “law of the land” are considered and a quotation from Mr. Webster in the famous Dartmouth College case is cited as follows: “By law of the land is most clearly intended the general law, which hears before it condemns, which proceeds from inquiry and renders judgment only after trial. The meaning is, that every citizen shall hold life, liberty, property, and immunities under the protection of general rules which govern society.”
Said case also discusses and cites with approval
Hovey
v.
Elliott,
167 U. S. 409 [42 L. Ed. 215, 17 Sup. Ct. Rep. 841], stating: “And in the very recent case of
Hovey
v.
Elliott,
decided by the Supreme Court of the United States, where, in a civil action, the court had stricken out the answer of a party because of his contempt of an order requiring him to pay money into court, and rendered judg-' ment against him
pro confesso,
it was held that the act was beyond the power of the court, for the reason that it deprived the party of the right to be heard in his defense; and that the judgment so entered against him was void, even as against collateral attack. Among other things, it is there said: ‘Can it be doubted that due process of law signifies a right to be heard in one’s defense? If the legislative department of the government were to enact a statute conferring the right to condemn the citizen without any opportunity whatever of being heard, could it be pretended that such an enactment would not be violative of the constitution ? - If this be true, as it undoubtedly is, how can it be said that the judicial department, the source and fountain of justice itself, has yet the authority to render lawful that which if done under the express legislative sanction would be violative of the constitution? If such power obtains, then the judicial department of the government, sitting to uphold and enforce the constitution, is the only one possessing a power to disregard it. If such authority exists, then, in consequence of their establishment to compel obedience to law and enforce justice, courts possess the right to
[326]
inflict the very wrongs which they were created to prevent. ’ ”
It is therein further held: “And, as showing that it is not sufficient that the court shall go through the mere form of citing a party to appear upon the pretense of giving him a hearing while in fact denying him the right in its substance, it is there said: ‘Until notice is given, the court has no jurisdiction in any case to proceed to judgment, whatever its authority may be by the law of its organization over the subject matter. But notice is only for the purpose of affording the party an opportunity of being heard upon the claim or the charges made; it is a summons to him to appear and speak, if he has anything to say, why the judgment sought should not be rendered. The denial to a party of the benefit of a notice would be in effect to deny that he is entitled to notice at all, and the sham and deceptive proceeding had better be omitted altogether. It would be like saying to the party, appear and you shall be heard; and, when he has appeared, saying, your appearance shall not be recognized, and you shall not be heard. ’ And, quoting from
Galpin
v.
Page,
18 Wall. 350 [21 L. Ed. 959], it is said: ‘It is a rule as old as the law, and never more to be respected than now, that no one shall be personally bound until he has had his day in court, by which is meant until he has been duly cited to appear and has been afforded an opportunity to be heard. Judgment without such citation and opportunity wants all the attributes of a judicial determination; it is a judicial usurpation and oppression, and can never be upheld where justice is justly administered. ’ ”
In the ease of
Foley
v.
Foley,
120 Cal. 33 [65 Am. St. Rep. 47, 52 Pac. 122], the court below struck out the demurrer of defendant, refused to permit him to answer and rendered judgment against him
pro confesso
for his failure to obey its order for alimony. This court, upon authority of
Hovey
v.
Elliott, supra,
held that the court below was authorized to enter the judgment, saying, among other things: “Where a given act amounts to the invasion of a constitutional right, we can perceive no well-founded distinction in principle whether such invasion come from an attempted legislative sanction, or from the naked, unauthorized act of the court. The one is as ineffectual as the other.”
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In. the ease of
Meacham
v.
Bear Valley Irr. Co.,
145 Cal. 606, 608 [68 L. R. A. 600, 79 Pac. 281], a trial by jury was waived and when the cause came on for trial the plaintiff’s counsel read the verified complaint and answer and called a witness to the stand, who was duly sworn by the clerk. Thereupon the court made an order reciting that the parties had been requested to deposit with the clerk each one-half of the reporter’s per diem to abide the result of the suit; that the reporter had refused to report the testimony unless the fees were paid, and that the defendant had refused to comply with said request, and concluding with the following language: “It is therefore ordered that the defendant deposit the fee of the reporter within five minutes, or a judgment will go for plaintiff as prayed for.” Defendant’s counsel refused to obey the order and judgment was thereupon entered for plaintiff. Upon appeal this court held: “The failure or refusal of a defendant to pay the costs of an action, or any portion thereof, in advance of a trial, does not authorize the court to deprive him of his defense to the action. The guarantee of the Constitution that he shall not be deprived of his property without due process of law gives him the right to be heard in its defense against any claim that may be made against him for its possession; and he is not to be deprived of this right as a penalty for failing to comply with some rule of court.”
In the case of
Younger
v.
Superior Court,
136 Cal. 682 [69 Pac. 485], this court, upon
certiorari,
set aside and annulled an order of the superior court of Santa Cruz County striking a complaint from the files. Said order recited that the complaint was false, deceitful, and abusive of the process and proceedings of the court in the matter of the allegation that Honorable Lucas F. Smith (the judge then presiding) claimed to have some interest in or claim to the land therein described, and further stated: “It further appearing to the court that said allegation in so far as it relates to the said Lucas F. Smith is absolutely false, and was known by said plaintiff Helen Younger at the time of the signing of said complaint, and also at the time of the filing thereof, to be false, ...” Again, upon authority of
Hovey
v.
Elliott, supra,
and
McClatchy
v.
Superior Court, supra,
the order was set aside and annulled, this court saying, among other
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things: “The court in making the order exceeded its jurisdiction, and there is no other plain, speedy, and adequate remedy. No judgment was entered and there does not appear to be any right of appeal from the order. ‘Any departure from those recognized and established requirements of law, however close the apparent adherence to mere form in method of procedure, which has the effect to deprive one of a constitutional right is as much an excess of jurisdiction as where there is an inceptive lack of power. ’ ”
This same principle has also been recognized many times in other jurisdictions. See
Hovey
v.
Elliott, supra; Morley
v.
Morley,
131 Wash. 540 [230 Pac. 645], which cites with approval the above quotation from 15 R. C. L., p. 847, sec. 321. Likewise, in
City of Taylorville
v.
Central Ill. etc. Co.,
301 Ill. 157 [133 N. E. 720, 721], it is said: “It is an essential of due process of law that every person whose property rights are to be affected shall have notice and an opportunity to be heard to defend, enforce, and protect his rights. The Workmen’s Compensation Act makes no provision for notice to a third party nor duty nor opportunity to be heard or to contest the amount of compensation to be awarded, and the defendant had neither notice nor hearing before the administrative body that fixed the amount to be allowed. A statute providing that the defendant should pay a certain sum as damages for its negligent act, without notice or a hearing as to the amount of such damage, would violate the Constitution.
Campbell
v.
Campbell,
63 Ill. 462;
Gage
v.
City of Chicago, 225
Ill. 218 [80 N. E. 127];
Hultberg
v.
Anderson, 252
Ill. 607 [97 N. E. 216]; 6 R. C. L., 450; 12 Corpus Juris, 1195.”
In
Lacher
v.
Venus,
177 Wis. 558, 572 [24 A. L. R. 403, 188 N. W. 613, 618], it is said: “Notice that some particular judicial proceedings are already instituted or proposed to be instituted; notice of the time and place where such hearings are to be had; reasonable opportunity to be heard—are the essentials of due process of law; anything short of this is absence thereof.
Seifert
v.
Brooks,
34 Wis. 443, 448;
State ex rel. Mil. Med. Col.
v.
Chittenden,
127 Wis. 468, 506 [107 N. W.
500]; Ekern
v.
McGovern,
154 Wis. 157, 240 [46 L. R. A. (N. S.) 796, 142 N. W. 595];
Truax
v.
Corrigan,
257 U. S. 312 [27 A. L. R. 375, 66 L. Ed. 254, 42 Sup. Ct.
[329]
Rep. 124], decided December, 1921; 12 C. J., p. 1192; 6 R. C. L., p. 446. There having been a lack of due process of law, the attempted adoption proceedings in the county court of Monroe County in August, 1918, were void.”
These eases are all in point because there can be no difference between a case where the court had an excuse, although insufficient, for denying a hearing and a case like the one before us where no legal excuse existed.
The authorities cited in the main opinion may with profit be noted here. The first and only important one is
In re Newman,
75 Cal. 213 [7 Am. St. Rep. 146, 16 Pac. 887]. In that case the proceeding under consideration was an attack twice removed from a direct attack. Bernard Newman died intestate and without wife or blood issue. An alleged adopted son, through his mother, as guardian, applied for letters of administration. The application was contested by a brother of decedent, who assailed the adoption proceedings. The chief ground of attack was that said proceedings were illegal because the father of the child had not consented thereto. The petitioner contended that this consent was unnecessary, as the mother and father were divorced and custody of the child had been awarded to the mother. Respondent, decedent’s brother, answered this contention with the allegation that the judgment in the divorce action between the mother and father was invalid. The contention in reality was, therefore, that the adoption proceedings could be collaterally questioned by collaterally questioning the judgment in the divorce proceeding. No authority need be cited to support the statement that one collateral attack may not be pyramided upon another attack of the same kind. But, disregarding that point, we find that in said case the service of summons in the divorce proceeding was by publication upon an affidavit and order. In 1886, the year of the death of Bernard Newman, these papers were not a part of the judgment-roll and could not be considered. (See Amendments to the Codes, 1875-76, p. 93.) The judgment recited due service of the summons, default of defendant and that service was by publication. An affidavit appeared in the files impossible on its face, as it recited publication before the suit was instituted and publication after the judgment was entered. In other words, the recitals in the
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judgment contradicted the affidavit of service. The court permitted to be filed
nunc pro tunc
an affidavit of service the facts of which are not stated. Thereupon the adoption proceedings were declared valid and the petitioner was appointed administratrix. The court in this behalf said: ‘' The recital in the judgment that the defendant was duly served with process is consistent with the proof of service. It is the
fact of service
which gives the court jurisdiction—not the proof of service—and the court had authority to receive the amended affidavits of service after judgment and before the roll was made up.
(Mason
v.
Messenger,
17 Iowa, 261;
Rickards
v.
Ladd,
4 Pac. C. L. J. 52 [Fed. Cas. No. 11,804];
Allison
v.
Thomas,
72 Cal. 562 [1 Am. St. Rep. 89, 14 Pac. 309].) The affidavits of service and the recitals in the judgment are conclusive. The affidavit on application for an order of publication, and the order of publication, cannot be considered. They are no part of the roll.”
The issue as to service being in doubt upon the face of the record, it may well be that a situation was presented to the court in that action with regard to which the following language of
Wharton
v.
Harlan,
68 Cal. 422, 425 [9 Pac. 727], is applicable: “Moreover, since service of summons may be proved by affidavit, and the proof of nonservice may also be by affidavit, thus sometimes making an issue of fact, there may possibly be some reason for sending a defendant into a court of equity in that case which does not apply when the judgment is void for defects appearing in the'roll (Code Civ. Proc., sec. 670, subd. 1), and which thus bears on its face the evidence of its invalidity.” Certainly in a collateral attack, the proof of service being in doubt, the judgment should not be disturbed. It is true that the court in the Newman case said by way of
ohiier
this: “The fact that judgment was rendered upon default entered before the time allowing the defendant to answer had expired rendered the judgment erroneous simply, not void. A judgment thus rendered can be attacked only upon motion or by appeal, and by the parties in interest. Maldonado is the only party aggrieved by the decree, and he is the only one who can attack it in any way.
(Anderson [Alderson]
v.
Bell,
9 Cal. 321;
Mitchell
v.
Aten,
37 Kan. 33 [1 Am. St. Rep. 231, 14 Pac. 497].) ” The reply to this
[331]
observation is, first, that it is not the same issue which is before us, as a valid answer, which is a prayer for hearing, is on file. Second, the case stands alone and is contrary to the weight of authority elsewhere. “At the expiration of the time allowed by law for the filing of an appearance or answer, judgment by default may generally be entered. Although it has been held that a judgment by default, rendered before time allowed defendant to answer has expired, is erroneous simply, the weight of authority is apparently to the effect that a judgment by default entered too soon is a nullity, and it has been said that to take a judgment by default before the return day is the same as signing a judgment without service of process at all.” (15 R. C. L., p. 665, sec. 113, citing
Yentzer
v.
Thayer,
10 Colo. 63 [3 Am. St. Rep. 563, 14 Pac. 53];
Vohlers
v.
E. H. Stafford Mfg. Co.,
171 Mich. 8 [Ann. Cas. 1914B, 1032, 137 N. W. 128];
State
v.
District Court,
42 Mont. 496 [Ann. Cas. 1912B, 246, 113 Pac. 472];
Winslow
v.
Anderson,
20 N. C. 9 [32 Am. Dec. 651].) Third, it is contrary to the line of later cases above cited, and if any conflict appears the Newman case must give way. Lastly, it is squarely and pointedly distinguished by the later case of
Reher
v.
Reed,
166 Cal. 525, 528, 529 [Ann. Cas. 1915C, 737, 137 Pac. 263], a case exactly apposite to our present inquiry, wherein it is said: “It follows that on the face of the record it appeared that the clerk was without authority to enter the default, and, consequently, without authority to enter the judgment. In such a case the court may set aside the judgment of its own motion at any time, and it is immaterial how the invalidity is called to its attention.
(Wharton
v.
Harlan,
68 Cal. 422, 425 [9 Pac. 727];
Kelly
v.
Van Austin,
17 Cal. 564;
People
v.
Greene,
74 Cal. 404 [5 Am. St. Rep. 448, 16 Pac. 197].)” To the same effect see Ann. Cas. 1915C, page 738, note. Said declaration in the Newman case is also at variance with the cases of
Kelly
v.
Van Austin,
17 Cal. 564, 565, 566, and
Junkans
v.
Bergin,
64 Cal. 203, 204 [30 Pac. 627, 629]; both cases of collateral attack. In the latter case the court said: “When the
casus legis
does not exist, his entry of judgment is void and of no avail. This very point was determined in
Kelly
v.
Van Austin,
17 Cal. 565, 566, where, as here, the judgment was collaterally attacked. This ruling
[332]
has been frequently approved.” In this case the default was entered while an answer, though a belated one, was on file.
What is above said disposes of the cases of
Endowment Department, etc.,
v.
Harvey,
6 Ala. App. 239 [60 South. 602, 604], and
Chehalis Coal Co.
v.
Laisure,
97 Wash. 422 [166 Pac. 1158, 1160]. Furthermore we are not advised as to what constitutes the judgment-roll in those states. The main opinion cites no other cases requiring discussion.
It is no answer to this contention to say that the defendant was in duty bound to watch the calendar of the court to see if some action was being taken against him without notice and, so finding, he had the right of appeal. Such a position discounts the strength of the provision in our constitution requiring “due process of law.” An appeal without evidence and without a chance to make a record is wholly insufficient to constitute a day in court and time need not be taken to cite authority on so evident a proposition. Likewise it is no excuse to say that a judgment void on its face may not be called into question by a party who has no beneficial interest thereunder or who is not injuriously affected thereby. The cases of
People
v.
Greene, supra, People
v.
Davis, supra,
and 15 R. C. L.,
supra,
answer such contention beyond doubt. If such a judgment is a “dead limb upon the judicial tree” why may not a court of its own motion or at the behest of any other person, destroy the rubbish and decayed matter from the legal tree? Moreover, the defendant in this action is the identical person made a party to the judgment under examination. His failure to properly defend himself against said judgment might well bring him into an actionable position with one or the other parties thereto. Certainly said defendant has a legal duty to perform and should be allowed to perform it as he is the
alter ego
of one of the parties to the action in question.
The line of demarcation between void and voidable judgments is clearly marked and the judgment in question is void upon collateral attack in my opinion. This question I regard of grave importance for under a contrary holding any defendant over night might find himself in a position where he would have to go to the trouble and expense of
[333]
an appeal and in some eases he might discover his predicament too late to make direct attack on the judgment.
When a litigant submits to the jurisdiction of the legal forum and prays for a hearing he supplicates the throne of justice and not that of oppression. If he may not be heard, the court then becomes the executioner of one who has prayed for mercy and does exactly what it is organized to prevent. We should not hesitate, therefore, and weaken at the usurpation simply because the attack is collateral so long as the infirmity appears in a way to permit the attack, to wit, on the face of the judgment-roll.
Judgment of the court below was correct and should be affirmed.