I dissent. I am in accord generally with the views expressed by Mr. Justice Preston in his dissenting opinion. I entertain no doubt, however, that the attitude assumed by the respondent herein is in the nature of a collateral attack upon the judgment in the original action of Gray v. Yarbrough. (Howe v.Southrey, 144 Cal. 767 [78 P. 259]; Hamblin v. SuperiorCourt, 195 Cal. 364 [43 A.L.R. 1509, 233 P. 337].) When such an attack is made an inspection of the judgment-roll alone must disclose whether the judgment is void for want of jurisdiction of the court to pronounce it or is merely the result of error in the exercise of jurisdiction. The main opinion holds that the judgment was erroneous and subject only to direct attack. With this conclusion I am unable to agree. In brief, an inspection of the judgment-roll shows that the court rendered the judgment on the merits when the case was at issue on questions of fact and without notice to the defendant or any opportunity afforded him to be heard. This action on the part of the court was, I think, in excess of its jurisdiction. As said by this court in PioneerLand Co. v. Maddux, 109 Cal. 633, at page 642 [50 Am. St. Rep. 67, 42 P. 295, 297], quoting with approval from Mr. Van Fleet on "Collateral Attack," section 16: "In order to make a judgment void collaterally; either 1. A legal organization of the tribunal; or 2. Jurisdiction over the subject matter; or 3. Jurisdiction over the person must be wanting; or 4. One or more of these matters must have been lost after it once existed. When either one of these defects can be *Page 334 shown, the judgment and all rights and titles founded thereon are void. . . . When a judgment is lacking in any of the foregoing particulars, it matters not whether it was rendered by the highest or the lowest court in the land — it is equally worthless. No one is bound to obey it. The oath of all officers, executive, legislative or judicial compels them to disregard it." Assuming that the court in the action of Gray v. Yarbrough acquired jurisdiction of the person of the defendant in the first instance by the service of summons upon him and his appearance, it is clear to me that the jurisdiction so acquired was not continuing so as to empower the court to hear the cause upon issues of fact joined and pronounce judgment against him exparte. In harmony with and in furtherance of the constitutional requirement of due process of law, the legislature has prescribed that when a case is, as here, at issue on questions of fact the adverse party must have notice of trial. (Sec. 594, Code Civ. Proc.) That section of the code has been applied in numerous instances; but in no case, to my knowledge, has it been held, where the point was directly involved, that the required notice was not jurisdictional. In Uplinger v. Yonkin, 47 Cal.App. 435 [190 P. 822], it was held that the requirements of that section did not apply to a defaulting defendant. It is true the court then went on to say that even when the requirements of the section are applicable, a trial and judgment given without such notice is merely erroneous, citing Estate of Dean, 149 Cal. 492 [87 P. 13]. But the Dean case was a direct appeal and the holding therein went no further than to declare that the failure to give notice of trial was prejudicially erroneous and would necessitate a reversal. The question of collateral attack was not involved in either case. In Clark v. Superior Court, 55 Cal. 199, referred to in the main opinion, a trial on the merits had taken place in the old district court, all parties being present. Findings and judgment had been signed by the court, but were not filed until after the new constitution became effective. The question of whether the court had jurisdiction of the parties was not involved. In fact, the statement of the court, quoted in the main opinion, recognizes that jurisdiction of the parties must exist. Furthermore, the quoted statement is obiter. *Page 335
In the present case no disputed question of fact is involved. On the record the main opinion declares correctly that the original cause was at issue, was heard and decided by the court and judgment pronounced without notice to the defendant. In such case it is not correct to assume, as is assumed in the main opinion, that the court had continuing jurisdiction of the person when notice of hearing under the law was necessary. The judgment on its face shows the defect of want of jurisdiction of the person. It is, therefore, void and "may be attacked anywhere, directly or collaterally, whenever it presents itself, either by parties or strangers. It is simply a nullity and can be neither the basis nor evidence of any right whatever." (Forbes v.Hyde, 31 Cal. 342, 347; Estate of Pusey, 180 Cal. 368, 374 [181 P. 648].) Even the affirmance of such a judgment on appeal could not make it valid. (Pioneer Land Co. v. Maddux, supra;Ball v. Tolman, 135 Cal. 375 [87 Am. St. Rep. 110,67 P. 339].)
In my opinion the respondent clerk was justified in disregarding the judgment relied on by the appellant. It imposed upon him no duty enjoined by law and the trial court was right in denying the writ of mandamus.
Rehearing denied.
Shenk, J., and Preston, J., dissented.