Summary
In Smurda v. Superior Court, 266 P. 843, 845, this court said: "The effect of a dismissal, where the answer seeks no affirmative relief * * * is ipso facto to terminate the case and oust the court of jurisdiction to proceed."
Summary of this case from McDonald v. SeveryOpinion
Hearing Granted by Supreme Court June 14, 1928.
Application for writ of prohibition by Mary Calista Flynn Smurda and another to be directed to the Superior Court of Los Angeles County to restrain further proceedings in an action to establish a trust. Writ granted.
COUNSEL
Dockweiler & Dockweiler & Finch, of Los Angeles, for petitioners.
D. Joseph Coyne, of Los Angeles, for respondent.
OPINION
CRAIG, J.
In this proceeding the petitioners pray for a writ of prohibition to restrain the superior court from further proceeding in an action begun on November 19, 1926, by Thomas Flynn and Martha C. Flynn, his wife, against the petitioners and certain other defendants designated by fictitious names. By that suit the relief sought was to have certain property declared to be held in trust and the trustees thereof constructive trustees for the plaintiffs in said action, and to secure a decree requiring the reconveyance of said property to the plaintiff Thomas Flynn. On December 27, 1926, Thomas Flynn entered a dismissal of the action; previously, on the same date, counsel for Martha C. Flynn ordered a default of the petitioners herein, and the clerk entered it. Thereafter such steps were taken that Thomas Flynn was served with summons as one of the fictitious defendants, and filed an answer which admitted the truth of the allegations of the complaint, and asked that the relief prayed in the complaint be granted. On April 8, 1927, judgment was entered in favor of Thomas Flynn against the defendants in said action.
The petition in this proceeding alleges all of the above facts, and that the petitioners had no knowledge of any of them which transpired since December 26, 1927; that, after judgment was entered upon the petition of Mary C. Flynn, Thomas Flynn was adjudged incompetent, and the Security Trust & Savings Bank was appointed guardian of his estate; also that on November 7, 1927, M. W. Purcell was appointed guardian ad litem for Thomas Flynn in said suit. It is represented that the superior court is proceeding and threatening to proceed, with the enforcement against the petitioners of said judgment. The court has appointed Robert E. Allen receiver of the real and personal property involved, which petitioners allege is owned by Mary C. Flynn.
However, the judgment purports to quiet the title of Thomas Flynn to said property and to perpetually enjoin petitioners from claiming the same or any interest therein, and declares that petitioners hold said property as trustees for Thomas Flynn and Mary C. Flynn, and commands petitioners to convey the property to Thomas Flynn. It also provides that, should need arise upon application therefor, a receiver be appointed to carry out the judgment. Such an application was made and a receiver was appointed.
It seems to be contended by respondent that the beneficial interest in a trust is community property, and that an action to establish a trust in which two persons, husband and wife, are beneficiaries, is not one affecting community property. We cannot follow this reasoning, and no authorities are cited to uphold this theory. It seems conclusive that, if the property involved is community property, a suit in equity to protect the community title of husband and wife is one affecting the community as much as would be an action for unlawful detainer or for damages, involving the same property. Here, it is recited in the complaint of Thomas Flynn and Martha C. Flynn, and the answer of Thomas Flynn, and is found by the court’s findings to be a fact, and is declared in the judgment, that the property in which a trust was asked to be, and was attempted to be, established, was community property of Thomas and Mary C. Flynn. However, in this proceeding we need not decide the question principally argued by counsel as to whether or not a wife who is a party to an action affecting community property has authority to direct the entry of default of a defendant. Even if the wife here had the right, the suit was thereafter dismissed by the husband, Thomas Flynn, and his attorneys of record, under subdivision 1 of section 581 of the Code of Civil Procedure.
An action may be dismissed at any time before its final submission. McDermot v. Grant, 181 Cal. 332, 334, 184 P. 396, and cases there cited, in which it is said:
"A case is submitted after the court, trying the case without a jury, has taken the case under advisement, at the close of the evidence and argument."
This case was not finally submitted until the conclusion of the hearing, which occurred on April 6, 1927, nor could the suit have been finally submitted until evidence was taken, even if the defendants had defaulted and their defaults had been regularly entered, for it was one in equity requiring proof. Of course, the effect of a dismissal, where the answer seeks no affirmative relief, and which is made under the provisions of the Code, as was done in this case, is ipso facto to terminate the case and oust the court of jurisdiction to proceed. Huntington Park Imp. Co. v. Superior Court, 17 Cal.App. 692, 121 P. 701; Hopkins v. Superior Court, 136 Cal. 552; 69 P. 299; Kaufman v. Superior Court, 115 Cal. 152, 46 P. 904.
It follows that, although the court had previously possessed jurisdiction over the persons and the subject-matter of the suit in question, such jurisdiction had been completely lost. Hence the judgment rendered and all other steps taken subsequently to the dismissal of the action are void for want of jurisdiction.
Where the court has lost jurisdiction as a result of a dismissal by the plaintiff and his attorneys, prohibition will be granted to restrain further illegal and unauthorized action about to be taken. Hopkins v. Superior Court, supra.
But it is contended that prohibition issues only to prevent the commission of a future act, and not to undo an act already performed, and that in this instance the receiver appointed by the court has performed all of the acts required of him to carry the judgment into effect, that not only has the judgment itself been rendered, but full compliance has been made with its provisions. If this were the fact, it would be an insuperable objection to the issuance of the writ of prohibition. Valentine v. Police Court, 141 Cal. 615, 75 P. 336. A writ of prohibition will not issue to secure the annulment of proceedings already had.
But the petition asserts that Mary Calista Flynn Smurda is in possession of the property in question. In its return the respondent court nowhere denies this allegation. True, it is said that the receiver has executed a grant deed to Thomas Flynn, and the assignments of the mortgages in conformity with the court’s order, and generally that the receiver has performed the duties incumbent upon him to be performed. This falls short of putting in issue the direct statement in the petition above mentioned, which is admitted to be true by lack of denial. There is, then, something to be done, namely, the taking of possession by the receiver of the property, real and personal, which the petition avers that the receiver threatens to do, and will do, unless restrained by this court.
Aside from this warrant for the exercise of jurisdiction by this court, where, as here, a complete record of the case as affecting the points in dispute is presented, and it appears that petitioner is entitled to the remedy afforded by writ of review, that relief will be given, though the petitioner has asked only for prohibition. Havemeyer v. Superior Court, 84 Cal. 327, 24 P. 121, 10 L. R. A. 627, 18 Am. St. Rep. 192; Traffic Truck Sales Co. v. Justice Court, 192 Cal. 377, 220 P. 306; Finn v. Butler, 195 Cal. 759, 235 P. 992.
It is therefore ordered that the judgment dated April 6, 1927, in favor of Thomas Flynn and against petitioners herein, as well as the order appointing a receiver, be, and they are, annulled, and the respondent court and the receiver are prohibited from further proceeding in said action.
We concur: WORKS, P. J.; THOMPSON, J.