In support of the argument, Cambra cited many cases holding that, as one Supreme Court case cited by Cambra tersely put it, "A judgment rendered for or against a dead person is void ...." ( In re Estate of Parsell (1923) 190 Cal. 454, 456, 213 P. 40 )—language the Supreme Court first used in 1868, in Judson v. Love (1868) 35 Cal. 463. Numerous cases have used such language since.
( Estate of Norris (1947) 78 Cal.App.2d 152, 160 [ 177 P.2d 299].) Accord: Estate of Parsell (1923) 190 Cal. 454, 456 [ 213 P. 40, 25 A.L.R. 1561]; Estate of Scrimger, supra, 188 Cal. 158, 165; Wills v. Wills, supra, 166 Cal. 529, 532; Bacon v. Bacon (1907) 150 Cal. 477, 482 [ 89 P. 317]; Toland v. Earl, supra, 129 Cal. 148, 152; McKenzie v. Budd (1899) 125 Cal. 600, 602 [58 P. 199]. Accord: Estate of Bissinger (1964) 60 Cal.2d 756, 762 [ 36 Cal.Rptr. 450, 388 P.2d 682, 19 A.L.R.2d 506]; Estate ofFerry (1961) 55 Cal.2d 776, 782 [ 13 Cal.Rptr. 180, 361 P.2d 900, 90 A.L.R.2d 300]; Estate of Eckstrom (1960) 54 Cal.2d 540, 544-545 [ 7 Cal.Rptr. 124, 354 P.2d 652]; Federal Farm Mtge.Corp. v. Sandberg (1950) 35 Cal.2d 1, 4 [ 215 P.2d 721]; Estate of Van Deusen, supra, 30 Cal.2d 285, 290; Estate ofEaster, supra, 24 Cal.2d 191, 194; Estate of Goldberg (1938) 10 Cal.2d 709, 713 [ 76 P.2d 508]; Bixby v. Security-First Nat.Bank (1936) 7 Cal.2d 424, 428 [ 60 P.2d 862]; Estate of Den (1935) 3 Cal.2d 638, 640 [ 45 P.2d 963]; Manning v. Bank ofCalifornia (1932) 216 Cal. 629, 634 [ 15 P.2d 746]; Whittingham v. Calif
An appeal would lie from such an order when duly made and entered. (See Brownell v. Superior Court, 157 Cal. 703 [ 109 P. 91]; see, also, Estate of Parsell, 190 Cal. 454 [ 213 P. 40, 25 A.L.R. 1561].) The petitioners herein, feeling aggrieved, could appear in the probate proceeding and notice an appeal from the final order made upon the application for approval of the agreement and for partial distribution.
In principle that case cannot be distinguished from the situation here, where it appears that the only services rendered by counsel were in endeavoring to advance the position of appellant as to the manner in which the estate should be distributed. (See Estate of Ross, 179 Cal. 358, 360, 361 [ 182 P. 303], and cases cited; also Estate of Parsell, 190 Cal. 454, 456 [ 213 P. 40, 25 A.L.R. 1561].) [4] By the same process of reasoning we arrive at the conclusion that the executor was not a party aggrieved by the decree of distribution, and, therefore, not entitled to prosecute this appeal ( Estate of Ayers, 175 Cal. 187 [ 165 P. 528], Estate of Morgan, 203 Cal. 569 [ 265 P. 241], and Estate of Babb, 200 Cal. 252 [ 252 P. 1039]), but that does not render the appeal by Joseph L. Murphey ineffective, nor change the outcome hereof.
"It is true that as to the foreclosure proceeding the allegations are not as full as those in the cases cited, but respondent offered the deed in evidence and told the court that he had no objection to the admission of the entire record and this was a necessary link in the proof of his chain of title. [2] These proceedings were void and not merely voidable because the court had no jurisdiction to entertain them, the defendant named therein having died before the proceedings were instituted. (15 R.C.L. 621, 622; Garrison v. Blanchard, 127 Cal.App. 616 [ 16 P.2d 273], and see Estate of Parsell, 190 Cal. 454, 456 [ 213 P. 40, 25 A.L.R. 1561].) That decree having been rendered against a dead man had no legal effect against his heirs in whom the title to the property vested immediately upon his death.
[2] A judgment or order made and entered after the death of a person and which purports to affect only his personal status is void. (Code Civ. Proc., § 385, Boyd v. Lancaster, 32 Cal.App.2d 574 [ 90 P.2d 317]; Clark v. Goodwin, 170 Cal. 527 [ 150 P. 357, L.R.A. 1916A 1142]; Estate of Parsell, 190 Cal. 454, 456 [ 213 P. 40, 25 A.L.R. 1561]; 28 West's Cal.Dig. 38, 39; 1 C.J.S. 173, 176.) [3] The disciplinary proceeding as against Orchard came to an end upon his death and no valid order could be made against him thereafter.
Assuming, but not deciding, that had there been other creditors, appellant administrator might have been in a position to defeat plaintiffs' recovery through a showing, for the benefit of such other creditors, that judgment "A" was void on its face and that such other creditors were not parties to the fraudulent conveyance suit and would not be bound by judgment "B", upholding judgment "A", still appellant administrator has not shown that he represents any creditors other than plaintiffs and respondents. For the reasons stated, the case of Estate of Parsell, 190 Cal. 454 [ 213 P. 40, 25 A.L.R. 1561], and other authorities cited by appellant are not in point. [3] Is judgment "B" enforceable against defendant administrator?
If it be true that in the instant case Robert Cyrus O'Neil, the only surviving child of Johanna O'Neil, would take his mother's share by the operation of Civil Code, section 1310, then he takes it directly from the estate of Martin Johnson, deceased, and not through the estate of his mother. ( Estate of Parsell, 190 Cal. 454 [25 A.L.R. 1561, 213 P. 40].) Therefore, the administratrix of his mother's estate cannot represent him with respect to his share, if any, and she is not entitled to invoke the jurisdiction of a court of equity in his behalf or to bind him in this litigation with respect to his share, if any, which would come to him by force of Civil Code, section 1310
[7] Petitioner's contention that the judgment is void is based upon the theory that under all circumstances a judgment rendered for or against a dead person is void, and he likens the situation of the plaintiff administratrix herein to that of a party plaintiff who has died since the commencement of an action, but in whose name the judgment is nevertheless rendered. In support of such theory he cites the Estate of Parsell, 190 Cal. 454 [25 A.L.R. 1561, 213 P. 40]. Conceding that the analogy drawn by petitioner between the two cases is a logical one, we are unable to agree with his contention that under all circumstances a judgment is void where it is rendered for or against a deceased party, and the Estate of Parsell, as we understand it, does not so hold. Freeman on Judgments states the rule as follows: "If an action is begun by and against living parties, over whom the court obtains jurisdiction, and some of them subsequently die, it is not thereby deprived of its jurisdiction; and while it ought not to proceed to judgment without making the representatives or successors in interest of the deceased parties to the action, yet if it does so proceed its action is irregular merely, and its judgment is not void collaterally, particularly where the fact of death is not shown by the record" (1 Freeman on Judgments, p. 885, sec. 406).
The property administered in the probate proceedings had its situs in Dane county. Estate of Parsell (1923), 190 Cal. 454, 213 P. 40, 25 A.L.R. 1561, is cited to us for the proposition that a judgment directing distribution to a deceased person is void. That case proceeded on the theory that a judgment rendered for or against a deceased person is void. While this is undoubtedly true as respects a judgment in personam, a judgment in rem or quasi in rem ought not be subject to the same rule. The main objective of probate proceeding is the orderly distribution of the property of deceased persons.