(dissenting).
The complaint herein, which was dismissed for failure to state a cause of action, alleged the death of Harry Soza as a result of the negligence of Minnie Cur-less in .the operation of an automobile, as to which negligence liability insurance had been issued by appellees. The complaint alleged, that suit was brought and judgment recovered against the special administrator of the estate of Minnie Curless for the sum of $7,500, and that the same was still unpaid, and the estate of Minnie Curless is without funds to pay the judgment. The general effect of the policies and of the judgment is pleaded.
It is held by the majority of this court that the judgment relied upon by the pleader is void for lack of jurisdiction over the subject-matter, that is, over the cause of action for tort because the complaint in that action did not state facts sufficient to constitute a cause of action, although, be it noted, the complaint is not before us. The pleader contented himself with alleging that the superior court of Arizona, a court of general jurisdiction, had rendered the judgment. I quote the. allegations of the complaint: “That on or about the 22nd day of August, 1932, this plaintiff as such administrator brought air action in the Superior Court of the state of Arizona, in and for the county of Maricopa against George Barnum, Special Administrator of -the estate of Minnie Cur-less, deceased, to recover for the wrongful death of the said Harry Soza by virtue of the negligent operation of the aforesaid automobile in which the plaintiff’s deceased was riding by the said Minnie Curless now deceased.
“That thereafter, towit: on or about the 21st day of January, 1933, this Administrator as such Administrator did obtain a judgment in the Superior Court of the State of Arizona, in and for the county of Maricopa against the estate of said deceased in the sum of seven thousand five hundred dollars together with interest at the rate of six per cent per annum until paid.”
This pleading is sufficient to invoke the rule that the jurisdiction of a. court of general jurisdiction is presumed from the fact that it renders a judgment. 15 Cal.Jur. 282, § 273; High v. Bank of Commerce, 95 Cal. 386, 389, 30 P. 556, 29 Am.St.Rep. 121. The rule is thus stated in 21 R.C.L. § 24: “It is a general rule that in pleading judgments of courts of general jurisdiction the jurisdiction of the court need not be affirmatively shown by stating the facts on which it attached, for nothing is intended to be out of the jurisdiction of a court of record but what specially appears to be so: and nothing is intended to be within the jurisdiction of an inferior court but what is specially alleged. All that .is ordinarily required is that.it appear that the judgment had been duly given or made or that it had been duly adjudged.”
As the opinion of each of my associates is based upon the proposition that the complaint in the action against the special administrator of the estate of Minnie Cur-less did not state a cause of action, it may be sufficient to point out that the com*357plaint in that action is not before us, and that in its absence we are bound to assume from the facts pleaded that it does state a cause of action, if it is necessary so to do in order for the superior court to have jurisdiction of the subject-matter.
It may be contended that, as it was impossible to state, such a cause of action against the administrator of the estate of Minnie Curless under the statutes of Arizona, it must be presumed that no such cause of action was stated, There are two answers to this proposition. First, to apply such a presumption would not only be in direct opposition to the rule above stated as to the judgments of a court of general jurisdiction, but would also be to extend the doctrine of the decision of the Arizona Supreme Court in Brecht v. Hammons, 35 Ariz. 383, 278 P. 381, beyond its scope and intent. The second proposition is that according to the law of Arizona, as interpreted by Judge GARRECHT and concurred in by Judge DENMAN, with which interpretation I also concur, it was possible to state a cause of action against the special administrator of the estate of Minnie Curless for the negligence in question, if an action had been begun against her before her death for the tort. Upon that subject the trial judge stated in his opinion1 that: “No action was commenced against the said Minnie Curless during her life time.” He based his decision upon that assumption. This statement is not based upon any fact pleaded, and is directly in the teeth of the facts which must be presumed from the pleading upon the assumption I am now making.
I should here state that none of the foregoing propositions are dealt with in the briefs or argument of counsel.
According to my view, it is not material to the validity of the judgment of the court in the action against the special administrator of the estate of Minnie Cur-less whether or not the complaint in that action states a cause of action. Upon the assumption of the parties, we all assume that the appellees are privy to the judgment and bound by it if the judgment is valid against the special administrator of the estate of Minnie Curless. I hold that the judgment is valid. I have pointed out, however, that we must assume that the complaint in that action states a cause of action if that point is material, as my associates hold. Each of my associates relies upon the decision of the Supreme Court of Arizona, written by Judge Lockwood, in Brecht v. Hammons, supra. Judge GARRECHT holds that the opinion is a correct statement of general law, and Judge DENMAN that it is not, but that it must be followed by us. I think that neither proposition is tenable. As to Judge GARRECHT’S proposition that it is universally necessary in stating a right based upon a statute to state a good cause of action in order to vest jurisdiction of the controversy in a court of general jurisdiction, I have found no case holding such a proposition other than Brecht v. Hammons, supra, and none of the cases cited by that court to support that conclusion do so. The opinion of the court recognizes and states the correct rule, but announces the following exception: “When, however, the facts are admitted in the pleadings, and the court’s determination is based upon an error as to the law arising out of the admitted state of facts, its decision is not conclusive; and the judgment, in case the decision was in error, is subject to collateral attack.” In the very next paragraph the court referred to its recent decisions, also written by Judge Lockwood, Hammons v. Watkins, 33 Ariz. 76, 262 P. 616, and Herndon v. Hammons, 33 Ariz. 88, 262 P. 620, dealing with the same subject-matter in which both the trial court and the Supreme Court of Arizona assumed and exercised jurisdiction, although it was expressly held by both courts that the complaint did not state a cause of action as to the very same subject-matter as the court was dealing with in Brecht v. Hammons, supra. These two decisions of the Arizona Supreme Court are implied holdings that they had jurisdiction, regardless of the sufficiency of the facts pleaded to state a cause of action. I think the true rule is stated by the Arizona Supreme Court in an earlier case (1914) than Brecht v. Hammons (1929), where that court said, in Tube City Min. & Mill, Co. v. Otterson, 16 Ariz. 305, page 311, 146 P. 203, 206, L.R.A. 1916E, 303, as follows:
“Superior courts are courts of generah jurisdiction. They have jurisdiction in cases involving the foreclosure of all mortgages and liens. Such jurisdiction may not be the subject of any controversy. Judgments of courts within the scope of their power to hear and determine are not *358void, whether right or wrong. If it was within its power to determine the sufficiency of the Otterson claim for lien, as tested by the statutes of Arizona, its action in determining its sufficiency involved only a construction of the statutes relating to liens of laborers — a rightful exercise by the court of its jurisdiction. If the decision on the question was wrong, its judgment could have been reversed on appeal; it cannot be successfully impeached collaterally. * * *
“Whether a complaint does or does not state a cause of action, so far as it affects the question of jurisdiction, is tersely stated in the case, of Winningham v. Trueblood, 149 Mo. 572, 51 S.W. 399, in a quotation from 1- Elliott, Gen.Prac., § 320, as follows:
“ ‘Whether a complaint does or does not state a cause of action, is, so far as concerns the question of jurisdiction, of no importance; for, if the complaint states a case belonging to a general class over which the authority of the court extends, there is jurisdiction, and the court has power to decide whether the pleading is good or bad.’ ”
In a case later than Brecht v. Hammons, supra, the Supreme Court of Arizona again applied and elaborated the doctrine of Tube City Min. & Mill. Co. v. Otterson, supra. I refer to Dockery v. Central Arizona Light & Power Co. (Ariz.) 45 P.(2d) 656, decided May 2, 1935, also written by Judge Lockwood, citing Foltz v. St. Louis & S. F. Ry. Co. (C.C.A.) 60 F. 316, and Board of Com’rs of Lake County v. Platt (C.C.A.) 79 F. 567. In the case of Lisitzky v. Brady (1931) 38 Ariz. 337, 300 P. 177, 179, also written by Judge Lockwood, the plaintiff relied upon a declaratory judgment, and the defendant claimed that it was void in so far as it declared a lien in favor of plaintiff because it “was outside the issues of the pleadings, and therefore beyond the power of the court to render.” There the court which rendered the declaratory judgment was exercising a special statutory jurisdiction unknown to the common law. In considering the effect of that decision, the court stated its position as follows: “Regardless of whether the pleadings properly raised the issue of whether or not an equitable lien existed as found by the court, we think appellant is in no position to question the judgment. A judgment can only be attacked collaterally when it is void for want of jurisdiction. Henderson v. Towle, 23 Ariz. 377, 203 P. 1085. Since the court had jurisdiction of the subject-matter and the person of appellant, and the power to render the particular judgment which it did, defects in the pleadings cannot be raised at this time or in this manner. Tube City Min. & Mill. Co. v. Otterson, 16 Ariz. 305, 146 P. 203, L.R.A. 1916E, 303; 34 C.J. 560. But, even were this not true, we are of the opinion that under the pleadings the question of whether appellant had an equitable lien. on the property was just as much involved in a determination of his rights arising under the contract between Cohen and Brady as that of whether the executory part of the contract had terminated with Cohen’s death, and, since no appeal was taken, the decision is res adjudicáta in the case at bar.”
In view of these decisions, which are in accord with general law (see Black on Judgments, vol. 1 (2d Ed.) § 240, dealing with the subject, Jurisdiction of the Subject-Matter), I do not believe that it can be said that the Arizona Supreme Court is committed to the general principle that where the right claimed is based upon a statute rather than the common law, it is an essential to jurisdiction that the complaint state a cause of action.
The next question is as to the duty of a federal court sitting in Arizona with reference to the decision in Brecht v. Hammons, supra. In considering that question it should be noted that we are not directly concerned with that decision, that is to say, we are not dealing with the parties or with the matter litigated therein, and not even with the subject-matter therein involved. If we were concerned' with the effect of that judgment or with the judgment therein declared void as justifying a sale under execution, we would be in a different relation to that judgment. Further, if we were dealing with the same subject-matter, that is, dealing with the obligation of a stockholder who had acquired stock before and in a bank organized before the constitutional and statutory provisions of Arizona which imposed the stockholders’ liability were adopted, our duty to apply that decision would involve a different question from that here involved. Here a superior court of Arizona has entertained and rendered a judgment in an action for tort over which it clearly had jurisdiction under the Consti*359tuition of Arizona, which provides: “The superior court shall have original jurisdiction in all cases of equity and in all cases at law which involve the title to, or the possession of, real property, or the legality of any tax, * * * and in all other cases in which the demand or the value of the property in controversy amounts to two hundred dollars exclusive of interest and costs. * * * The superior court shall also have original jurisdiction in all cases and of all proceedings in which jurisdiction shall not have been by law vested exclusively in some other court.” Article 6 § 6.
The alleged right to recover for the tort against the special administrator of the estate of the tort-feasor is based upon a statute which the Supreme Court of Arizona has not yet passed upon, but which we hold does not justify such an action, unless an action was begun and was pending against the tort-feasor at the time of her death. The superior court, we may assume, considered this question and decided it against the appellees (or their privies) and against our present conclusion. If that decision were by the highest court of Arizona, we would be bound by it; but no appeal was taken to that court. We are not bound by the interpretation the superior court placed on the statute. Without speculating as to the conclusion to which the Supreme Court of Arizona would arrive on such an appeal, we are confronted with the necessity of passing upon that matter now, and have agreed in our interpretation of that statute. Having concluded that the right of action against the tort-feasor did not survive unless an action was commenced pri- or to her death, it remains to consider the effect of a judgment of the state court holding to the contrary.
1 do not believe that it is our duty to apply as a basis of our decision on that question the erroneous reason given by the Supreme Court of Arizona in another case dealing with other parties and a different subject-matter, and thus perpetuate an error and commit an injustice against the appellant in the case at bar. Judge DENMAN feels otherwise. I believe that it is impossible to secure a logical or just- result by pressing an erroneous rule applied in one case to all other cases in which the wrong principle would be applicable. This is particularly true where the erroneous rule is itself illogical. Upon that subject I quote Black on Judgments, § 241: “In one of the early cases before the supreme court of the United States it was said, ‘if the petitioner states such a case in his petition that on a demurrer the court would render a judgment in his favor, it is an undoubted case of jurisdiction.’ But probably this was not meant as equivalent to saying that if the petition were 'demurrable there would be no jurisdiction. Indeed it would be impossible, on any rational theory, to make the jurisdiction depend upon the validity of the case stated by the plaintiff. For the court must pass upon the sufficiency of the declaration, and jurisdiction to proceed at least so far must be acquired by the mere filing of the pleading and service of process. But it is equally certain that a court cannot, in ordinary cases, initiate a proceeding sua sponle. Its jurisdiction and power remain at rest until called into activity by the application of a suitor. Jurisdiction of the subject-matter, therefore, dynamically considered, depends upon the act of the parties in invoking the aid of the law, in some regular manner, for the determination of their controversy.”
Of course I realize that the question of the jurisdiction of a state court is peculiarly one of state cognizance where the question is one of applying and construing constitutional or statutory provisions giving or withholding jurisdiction, but we are not confronted with such a problem, nor are we likely to be in a state where full jurisdiction is given by constitutional provision in all actions at law. This is an action at law. True, the decision in Brecht v. Hammons, supra, was also one at law, but are we to assume that because the court there denied jurisdiction in that action at law we must deny jurisdiction in a different, in fact in all actions at law, where the complaint is insufficient to state a cause of action? In short, must we say that a rule applied in a particular case, dealing with a particular subject-matter, must be applied to all cases, even though it be conceded to be erroneous, and thus the whole doctrine of res judicata be impregnated with the error. My answer to these questions is twofold. (1) We are not bound to follow and apply an erroneous rule of law to an entirely different state of facts. (2) We are never compelled to follow the state court in the application of a general principle of law.
*360The first proposition seems fairly obvious for the reason that where the facts are different the ruling may be entirely different.
The second proposition is well settled. The effect to be given to a judgment of a court of general jurisdiction is a question of general law. Upon this question I cite without quotation the decision of Circuit Justice Field in Galpin v. Page, 9 Fed.Cas. 1126, No. 5,206, decided in this circuit in 1874.
To avoid misunderstanding, it sh'ould be stated that if the State Constitution or state statutes of Arizona expressly prohibited the court from exercising jurisdiction in certain cases, the federal court would be bound thereby, but the proposition that a State Constitution or state statute or state court can limit its courts of general jurisdiction to cases in which the plaintiff states a cause of action is manifestly incapable of intelligent application to practical affairs for some court must decide whether or not a plaintiff has a just grievance under the statute. If not • in one court, then another.
Judge DENMAN states that Judge GARRECHT concurs in the view that the federal courts cannot interfere with the state court’s determination of the powers and jurisdiction of state courts unless there is a violation of the due process clause of the Federal Constitution; citing Walker v. Sauvinet, 92 U.S. 90, 92, 23 L.Ed. 678. This may be freely conceded when properly applied; but we are not here concerned with the judgment in Brecht v. Hammons, supra, nor in any other case, excepting only the decision of the superior court, which is held void. We are only concerned with the case of Brecht v. Hammons, supra, as an authority which announces a rule of law inconsistent with both prior and subsequent decisions of the Arizona court of equal authority. Why should we apply an erroneous decision when the Arizona Supreme Court has repeatedly decided correctly that the statement of a good cause of action is not -a jurisdictional requirement? When analyzed, Brecht v. Hammons, supra, is not a case of statutory construction, but an erroneous application of an alleged general principle. On this matter, the statement by Justice Strong, speaking for the Supreme Court, is apt, if not directly in point, in Town of Venice v. Murdock, 92 U.S. 494, 501, 23 L.Ed. 583: “It is argued, however, that the New-York decisions are judicial constructions of a statute of that State; and, therefore, that they furnish a rule by which we must be guided. The argument would have force if the decisions, in fact, presented a clear case of statutory construction; but they do not. They are not attempts at interpretation. They would apply as well to the execution of powers or authorities granted by private persons as they do to the issue of bonds under the statute of April 16, 1852. They assert general principles, — to wit, that persons empowered to borrow money and give bonds therefor, for the purpose of paying it to an improvement company, are not authorized to deliver the bonds directly to the company; a doctrine denied in this court, in the Supreme Court of Pennsylvania, and even in the Court of Appeals of New York. People v. Mead, 24 N.Y. [114], 124; Town of Venice v. Woodruff et al., 62 N.Y. 462 [20 Am.Rep. 495]. They assert, also, that, where an authority is given to an officer to execute and issue bonds (on the assent of two-thirds of the voters of a town, the assent to be obtained by the officer and filed in a public office, with an affidavit verifying the assent), the verification amounts to nothing, subserves no purpose, and that a bona fide holder of the bonds is bound to prove that the requisite number of voters did actually assent. They assert this as a general proposition. They do not assert that the statute so declares, or that such is even its implied requisition. There is, therefore, before us, no such case of the construction of a State statute by State courts as requires us to yield our own convictions of the right, and blindly follow the lead of others, eminent as we freely concede they are.”
We now come to a rather curious situation which I feel should be mentioned in view of the conclusion of Judge GARRECHT that the rule is different with reference to common-law and statutory rights, and the conclusion of both my associates that the decision in Brecht v. Hammons, supra, establishes a peculiar rule or exception to the general- rule, where the right relied upon is statutory or constitutional. In that case- there was no question that the Constitution of Arizona and the statutes of Arizona confirmed the right sued upon. It was held that both State Constitution and statute were void in that regard as violative of the *361Fourteenth Amendment to the Constitution.
On that point we quote: “We therefore hold that article 14, section 11, of the Constitution of Arizona, imposing double liability upon stockholders of insolvent banks, and all statutes passed in pursuance of such provision, in so far as it is attempted to apply them to banks organized before such constitutional provision was adopted, and whose charters contain a provision similar to that of the bank in the present case, is in conflict with article 1, section 10, of the Constitution of the United States, and unconstitutional. In view of the above expression it is unnecessary that we discuss the matter of the statute of limitations.”
This is a federal question.
Thus the question decided in Brecht v. Hammons, supra, given its widest scope, is that the state superior court could not entertain jurisdiction of an action based upon a void statute or constitutional provision of Arizona. Certainly we are not bound to follow it further than this and to hold that the state court could not entertain an action for a tort based upon a statute because the right had expired or abated. In this connection we quote from the decision of the Supreme Court in Gantly’s Lessee v. Ewing, 3 How. (44 U.S.) 707, 715, 716, 11 L.Ed. 794, as follows: “It is proper to remark, that it would be our duty on this point to follow the construction' of the Supreme Judicial Court of Indiana, had it settled any; and this we would the more cheerfully do from the confidence we have in that tribunal; but nothing can be deemed as settled by the court of last resort in a state, unless it has adjudged the direct question; or unless the subject has, in an indirect form, and at various times, been brought before such court and treated as conclusively settled, and not open to controversy. This not appearing to be the case, it is certified to the Circuit Court that the sheriff’s deed is void for the reasons stated.”
I repeat that the Supreme Court of Arizona, in Brecht v. Hammons, supra, did not purport to interpret its own laws dealing with the jurisdiction of its courts, but stated an erroneous rule, a general principle, and applied it to the case in hand. Such a decision, if binding at all on the federal courts, is only binding upon the exact question decided, and as the Supreme Court had twice decided by necessary implication that there was jurisdiction in such a case, and as the point, although not dictum in Brecht v. Hammons, supra, was of no importance because the decision was the same as it would have been if this point had been decided the other way, I think we would not be bound even on the point directly decided in Brecht v. Hammons, supra, although it is unnecessary to go so far. In view of the fact that the Arizona court relied upon the decision of Grannis v. Superior Court, 146 Cal. 245, 79 P. 891, 106 Am.St.Rep. 23, it should be said that there the court was dealing with a statute which expressly prohibited the lower court from entering a decree of divorce until a year had expired from and after the interlocutory decree. It was held that this statute limited the jurisdiction of the court. That proposition was fairly debatable, but has no application to the situation under consideration here. The Arizona statutes relating to recovery for death caused by negligence do not purport to limit the powers of a court.
I think the judgment between the two administrators is valid, and that the judgment below should be reversed for that reason.
Not for publication.