Opinion
Hearing Granted by Supreme Court March 15, 1934.
Application by Charles W. Nichols for a writ of mandate to the Superior Court of the State of California in and for Los Angeles County, Emmet H. Wilson, Judge.
Peremptory writ granted.
COUNSEL
Schauer, Ryon & Goux, of Santa Barbara, and Paul J. Fritz, of Los Angeles, for petitioner.
Everett W. Mattoon, County Counsel, and J. F. Moroney, Deputy County Counsel, both of Los Angeles (Wilton W. Webster, of Pasadena, of counsel), for respondents.
OPINION
HOUSER, Justice.
From the record herein it substantially appears that the wife of petitioner sued him for a "divorce, division of community property, alimony pendente lite, injunction and receiver"; and that persons other than this petitioner were joined with him as defendants in said action; that thereafter, pursuant to an order to show cause that was served on the said defendants other than petitioner, but without any service of the complaint or the summons in said action theretofore having been made upon him, and in the like absence of any appearance by him in said action, an order was made by the trial court by which in effect a receiver was appointed of the property of petitioner, and which receiver was authorized and directed to pay to the plaintiff in said action certain sums of money as alimony and for attorney’s fees incurred by her therein; that thereupon, in pursuance of such order, the said receiver proceeded to and did take the custody and possession of all the property of this petitioner, sold the same, or the greater part thereof, and from the proceeds of said sale paid to the plaintiff in said action the alimony and the attorney’s fees provided by such order to be paid to her. Eight months after the complaint was filed in said action, an order was made by the trial court for the publication of summons as to petitioner; and seventeen months after said action was commenced, by filing his demurrer to the complaint and his answer thereto, petitioner appeared in the action. Eight months after petitioner had thus appeared, he gave to the plaintiff in said action notice of motion to vacate and set aside the order of the trial court by which the said receiver was appointed. Following the denial by the trial court of said motion, petitioner has applied to this court for a writ of mandate by which the trial court will be required to grant the said motion.
That in the situation here presented the trial court was without authority to make the order of which complaint is made is attested by the rule announced in the case of Baker v. Baker, 136 Cal. 302, 68 P. 971. To the same effect is Chaplin v. Superior Court, 81 Cal.App. 367, 253 P. 954.
The case of Murray v. Murray, 115 Cal. 266, 47 P. 37, 37 L. R. A. 626, 56 Am. St. Rep. 97, contains some language which readily might be taken to indicate a conclusion to the effect that, without first procuring service of process on the defendant, or, in the absence of his appearance in the action, "the court had power to make the order and appoint the receiver at the beginning of the action." However, an examination of the opinion therein discloses the fact that the question of the validity of the order by which the payment of alimony was directed and the receiver was appointed, as far as such order related to the time when it was made, was not considered. Nor does an examination of the briefs presented to the court by respective counsel of the parties to that appeal reveal the fact that such question was at issue. In that connection, the only question litigated, and the only one in that regard which the court was requested to decide, was whether the appointment of a receiver was proper in an action for maintenance brought by a wife against her husband. It follows that the general language of the opinion with reference to the validity of an order such as here is at issue, made before service of process was procured on the defendant, and before he appeared in the action, must be regarded as obiter and entitled to weight as such only.
But it is contended by the respondents herein that by the appearance of the defendant in the action, and by his "acquiescence" in the order for a long period of time after he made such appearance, he is estopped from questioning the validity of the order.
In nearly all the cases upon which the respondents rely as authority for their position in that regard, it may be noted that, on the face of the record therein, the invalidity of the judgment did not appear. In other words, as far as was ascertainable from the record itself, the judgment was unimpeachable. As to the case of First National Bank v. Superior Court, 12 Cal.App. 335, 107 P. 322, which apparently sustains the position assumed by the respondents, it is stated in the case of Moore v. Superior Court, 127 Cal.App. 692, 694, 16 P.2d 324, that "under the issues of that case also the question of the propriety of the writ or the legality of the receivership were not in issue."
In connection with the suggestion that the defendant had "acquiesced" in the order, at the outset it should be noted that the substituted service of summons in the action by publication thereof was not made effective until nearly ten months after the order for alimony and the appointment of a receiver had been made; and that, according to the allegations contained in the petition herein, "subsequent to the purported appointment of said receiver and prior to the service by publication of the summons in said action, said receiver did sell, dissipate and waste most of the properties and assets of the petitioner"; to which allegation exception is taken by respondents only by the admission contained in their answer that "respondents deny each and every allegation therein contained, save and except that the receiver therein referred to has sold a portion of the properties and assets of which he took possession under and pursuant to the terms of the order providing for his appointment."
It should be clear that in such circumstances the defendant may not fairly be said to have "acquiesced" in the order by virtue of which the greater portion of his properties was sold by the receiver. But in that regard attention should be directed to the additional fact that respondents’ claim of "acquiescence" on the part of defendant relates only to the period which elapsed between the date when he made his appearance, which was seventeen months after the complaint was filed in the action, and the date when he presented his motion in the trial court to have the order in question vacated, which was approximately eight months after he made his appearance. It is to such latter period only that the alleged "acquiescence" of the defendant is questioned and as to which consideration is invited. But it must be apparent that, even though such question should be determined favorably to the contention of the respondents, such a conclusion in no way could affect the period during the passage of which the greater part of the property of which the defendant was the owner was sold by the receiver and the proceeds thereof, presumably in accord with the order of the court, directly disbursed to the plaintiff in payment of attorney’s fees and alimony pendente lite theretofore awarded to her.
Even as to laches, the rule, as expressed in 15 California Jurisprudence, 57, is that it has no application to an attack upon a judgment void for lack of jurisdiction. And in 15 Ruling Case Law, at page 694, may be found the declaration that "if the judgment is void on its face, it is usually held that no limitation can with propriety be interposed, for the reason that no amount of acquiescence can make such a judgment valid." But it appears that, in legal effect, a considerable difference exists between the import of the word "laches" and that which should attach to the word "acquiescence." Following some introductory observations regarding the dissimilarity in the meaning of the two words respectively, in the case of Lux v. Haggin, 69 Cal. 255, 270, 4 P. 919, 10 P. 674, 678, the following occurs:
"Speaking of the distinction between ‘laches’ and ‘acquiescence,’ Wood remarks: ‘While the words "laches" and "acquiescence" are often used as similar in meaning, the distinction in their import is both great and important. "Laches" import a merely passive, while "acquiescence" implies active, assent; and while, when there is no statutory limitation applicable to the case, courts of equity would discourage "laches," and refuse relief after great and unexplained delay, yet, when there is such a statutory limitation, they will not anticipate it, as they may when "acquiescence" has existed. "Laches," in fact, amount only to that inferior species of "acquiescence" described in the following terms by Lord Kindersley in Rochdale Canal Co. v. King, 2 Sim. (N. S.) 89: "Mere ‘acquiescence’ (if by ‘acquiescence’ is to be understood only abstaining from legal proceedings) is unimportant. Where one party invades the right of another, that other does not, in general, deprive himself of the right of seeking redress merely because he remains passive, unless, indeed, he continues inactive so long as to bring the case within the purview of the statute of limitations." ‘ Lim. § 62."
To the same effect see Kenyon v. National L. Ass’n, 39 A.D. 276, 57 N.Y.S. 60, 74; Johnson-Brinkman C. Co. v. Missouri P. R. R. Co., 126 Mo. 345, 28 S.W. 870, 26 L. R. A. 840, 47 Am. St. Rep. 675; Purdy v. Bankers’ L. Ass’n, 101 Mo.App. 91, 74 S.W. 486, 492; Hall v. Otterson, 52 N.J.Eq. 522, 28 A. 907, 912.
Neither in the petition nor in the answer herein are any facts alleged which indicate that the defendant either failed to do, or did anything by which either laches, or "acquiescence" respectively on his part in the order in question, might be legally inferred; and by no one is it suggested that the filing either of a demurrer to the complaint, or of an answer thereto, could constitute such an "active assent" as should be established before an estoppel to question the order may properly result.
The general rule regarding the effect of a void judgment is indicated in various quotations set forth by the court in the case of Kreiss v. Hotaling, 96 Cal. 617, 622, 31 P. 740, 741, as follows:
"The judgment entered by the clerk being absolutely void because not supported by a valid statutory agreement of submission, we entertain no doubt of the power of the court to set it aside, with or without a motion therefor. ‘If a judgment is absolutely void, and a mere nullity, of course it is no protection or justification to any person, and it is immaterial whether it be set aside or not.’ Black, Judgm. § 355. ‘A void judgment is, in legal effect, no judgment. By it no rights were divested. From it no rights can be obtained. Being worthless in itself, all proceedings founded upon it are equally worthless. It neither binds nor bars any one. All acts performed under it, and all claims flowing out of it, are void. The parties attempting to enforce it may be responsible as trespassers.’ 1 Freem. Judgm. § 117. ‘Each court has such general control of its process as enables it to act for the prevention of all abuse thereof. Hence it may, to prevent the annoyance which might be occasioned by the attempted execution of a void judgment, either stay or arrest the process.’ Freem. Ex’ns, § 32. In People v. Greene, 74 Cal. 405, 16 P. 197 [5 Am. St. Rep. 448], Chief Justice Searls, speaking for the court, said: ‘A judgment which is void upon its face, and which requires only the 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.’ "
Similar in effect are Morgan v. Clapp, 207 Cal. 221, 277 P. 490; People v. Davis, 143 Cal. 673, 77 P. 651; People v. Greene, 74 Cal. 400, 16 P. 197, 5 Am. St. Rep. 448; Baird v. Smith, 216 Cal. 408, 14 P.2d 749; 22 Cal.Jur. 473.
And the rule applies to a void order by which a receiver has been appointed. Wiencke v. Bibby, 15 Cal.App. 50, 113 P. 876; Bibby v. Dieter, 15 Cal.App. 45, 113 P. 874.
That in circumstances such as are presented herein, mandate is a proper remedy. See Jackson v. Wilde, 52 Cal.App. 259, 198 P. 822; Hensley v. Superior Court, 111 Cal. 541, 44 P. 232; Inglin v. Hoppin, 156 Cal. 483, 105 P. 582; Puterbaugh v. Wadham, 162 Cal. 611, 123 P. 804.
It is ordered that a peremptory writ of mandate issue out of and under the seal of this court directed to respondents herein, commanding the respondent court to make an order granting the said motion of petitioner to vacate, set aside, and annul the said order by which a receiver was appointed in the action to which reference hereinbefore has been had, and which action on the records of said court is entitled Ida Mae Nichols, Plaintiff, v. Charles Wadsworth Nichols et al., Defendants, No. D--94514.
We concur: CONREY, P. J.; YORK, J.