I concur in the judgment of reversal but I cannot refrain from calling attention to the fact that the somewhat muddled situation in this case is due to the obviously erroneous decision of this court in the case of Greenfield v. Mather, 14 Cal.2d 228 [93 P.2d 100], where it was held that the judgment rendered by the Superior Court of Los Angeles County on March 14, 1935, in the case of Mather v. Mather was void. In my opinion said judgment was not void, but was a valid final judgment and not subject to collateral attack. However, the decision of this court in the case of Greenfield v. Mather, supra, is now final, and said decision, even though erroneous, is res judicata as to the invalidity of said judgment, and is binding upon the parties to this appeal. (3 Am.Jur. 700.) This being so, there is no escape from the conclusion reached in the majority opinion in the case at bar.
*721A review of the litigation between the parties to this action reveals that prior to 1934, Mr. and Mrs. Mather entered into an agreement while in Hawaii under which property possessed by them was transferred to Mrs. Mather. Thereafter Mr. Mather commenced an action in California against Mrs. Mather for the return of the property. The action was stated in three counts or causes of action, but all demanding the same relief, to-wit: restoration of the property, money judgment and cancellation of assignment. By counts one and two, Mr. Mather sought rescission of the agreement and return of the property because of misrepresentation, conspiracy and fraud; the third count pleaded the invalidity of the agreement under the law of Hawaii. (Greenfield v. Mather, 14 Cal.2d 228, 230 [93 P.2d 100].) Mrs. Mather’s demurrer to the third count was sustained without leave to amend, and on January 4, 1935, a judgment (hereinafter referred to as first 1935 judgment) was entered to the effect that plaintiff take nothing by the third cause of action. An appeal was timely taken from that judgment. The action was thereafter tried on the first and second causes of action resulting in a judgment on March 14, 1935 (hereinafter referred to as second 1935 judgment), to the effect “that plaintiff (Mr. Mather) take nothing ly his complaint, or by first and second counts thereof.” (Mather v. Mather, 5 Cal.2d 617, 618 [55 P.2d 1174].) Mr. Mather appealed from that judgment and the appeal was pending when the action, which was the basis of the 1938 judgment (hereinafter referred to) was' commenced, but was apparently dismissed before trial. That appeal was dismissed in September, 1935, for failure to file a transcript. (Greenfield v. Mather, 14 Cal.2d 228, 231 [93 P.2d 100].) The remittitur was later amended to read that the appeal from the judgment on the first and second counts was dismissed. The appeal from the first 1935 judgment was dismissed on March 17, 1936, on the ground it was not a final judgment and hence was not appealable. (Mather v. Mather, 5 Cal.2d 617 [55 P.2d 1174].) The court stated in the cited case that: “It is at once apparent that no final judgment was entered in the action until March 14, 1935.” (Italics ours.) This carries the clear implication that the judgment of March 14, 1935, was a final judgment. It was held to be dictum however, in Greenfield v. Mather, 14 Cal.2d 228, 231 [93 P.2d 100],
*722The Greenfield estate being confronted with conflicting demands for an interest .therein by both Mr. and Mrs. Mather, commenced an action in interpleader against them. Mrs. Mather claimed the property of the estate by virtue of the agreement considered in the first and second 1935 judgments. Mr. Mather asserted the agreement was not binding because a husband and wife could not so contract in Hawaii (the issue raised in the third count in the first 1935 judgment) and asked for a cancellation to which Mrs. Mather countered by pleading the first and second 1935 judgments as res judicata on the validity of the agreement. The trial court held the second 1935 judgment to be res judicata. (Greenfield v. Mather, 14 Cal.2d 228, 230 [93 P.2d 100]), and gave judgment for Mrs. Mather (hereinafter referred to as 1938 judgment). On Mr. Mather’s appeal this court reversed that judgment stating that: “Admittedly that action (the 1935 action) presented the identical issue raised by the pleadings herein with respect to the validity of the agreement.” It proceeded upon the theory that the first 1935 judgment was void and that therefore the second 1935 judgment was also void. That would leave the action resulting in the 1935 judgments still pending. Whether this court might have reached the same result by proceeding upon the theory that the first judgment was not a judgment at all on the third count and the second judgment was limited to the first and second counts which were based on fraud, and hence, the issue as to the validity of the agreement by reason of the Hawaii law (the third count) had never been adjudicated, will be discussed later herein.
After the foregoing events had transpired, and on December 7, 1939, defendant, Mrs. Mather, made a motion in the action which was the basis of the 1935 judgments, for entry of a final judgment nunc pro tunc therein as of March 14, 1935. The motion was granted, and the instant appeal by plaintiff, Mr. Mather, was taken therefrom. The majority opinion reverses that judgment on the ground that the findings which were the basis of the second 1935 judgment were changed upon a motion made without sufficient notice thereof. This leaves the 1935 action still open and with no judgment having been entered therein.
The decision of this court in Greenfield v. Mather, 14 Cal.2d 228 [93 P.2d,100], viewed as holding that both the 1935 *723judgments were void, is not correct. At most those judgments were merely irregular. The first judgment being irregular because prematurely rendered and the second because it failed to adjudicate the third cause of action, hence, splitting plaintiff’s action. Generally, a premature judgment is not void, it is merely erroneous. (In re Newman, 75 Cal. 213 [16 P. 887, 7 Am.St.Rep. 146]; see Haley v. Amestoy, 44 Cal. 132; McGrath v. Langford, 35 Cal.App. 215 [169 P. 424]; California C. C. Co. v. Crescent City etc. Co., 30 Cal. App. 619, 621 [159 P. 209] ; May v. Hatcher, 130 Cal. 627 [63 P. 33]; Gray v. Hall, 203 Cal. 306 [265 P. 246].) And such judgment is not subject to collateral attack. (Estate of Hancock, 156 Cal. 804 [106 P. 58, 134 Am.St.Rep. 177]; Alderson v. Bell, 9 Cal. 315; Whitwell v. Barbier, 7 Cal. 54.) The cases of de Vally v. Kendall de Vally etc. Co., Ltd., 220 Cal. 742 [32 P.2d 638]; Gunder v. Gunder, 208 Cal. 559 [282 P. 794]; and Potvin v. Pacific Greyhound Lines, Inc., 130 Cal.App. 510 [20 P.2d 129], cited in the Greenfield case do not hold that the judgment is void.
An attack on a judgment when it is pleaded as res judicata is a collateral attack and a judgment is res judicata even though erroneous. (15 Cal.Jur. 104.) The attack on the 1935 judgments in the 1938 action was therefore collateral and not effective unless the judgment was void. But even assuming that the first 1935 judgment was a nullity, it cannot be said that the second 1935 judgment was also a nullity or that it was not final. The most that could be said of it is that it failed to dispose of all the issues; that is, the effect of the order sustaining the demurrer to. the third count without leave to amend, or that it was a disposal of litigation piecemeal. A judgment may be erroneous where it fails to dispose of all of the issues, but it is final, and res judicata, and is not void or subject to collateral attack, which as we have seen was the nature of the attack in the 1938 action. (Stark v. Coker, 20 Cal.2d 839 [129 P.2d 390].) Splitting of actions is not jurisdictional and may be waived; if the defendant does not object, the judgment is binding upon him. (1 Cal.Jur. 370.) If plaintiff has several grounds for the cancellation of an agreement and urges only one, a judgment against him is res judicata as to the others. (Rest. Judgments, see, 63.) Hence, if in the 1935 action Mr. Mather had *724not raised the ground for cancellation of the agreement specified in his third count, the judgment would have been res judicata upon it. He is no better off by having raised it coupled with an order sustaining a demurrer to it without leave to amend. Assuming the judgment entered on that order was a nullity, still he could have asserted error in the order sustaining the demurrer on his appeal from the second 1935 judgment. (2 Cal.Jur. 823, 824.)
Viewing Greenfield v. Mather, supra, as holding that there was no final judgment in the 1935 action rather than that the judgments were void, the result should be the same. As we have seen, a judgment need not necessarily dispose of all of the issues to be final. But that would leave the issue on the third cause of action in the 1935 action still pending. It cannot, however, be said that it was not passed upon inasmuch as the order was made sustaining the demurrer thereto. While it is true that ruling could have been changed by the trial court, it did not do so. The preferable view is that the two 1935 judgments were in effect one judgment which became effective when the second judgment was entered.
This case presents a regrettable situation affecting both parties to this litigation. After approximately ten years of litigation the parties appear to be no closer to a final determination of their controversy than when the action was commenced. The merits of the controversy have not yet been passed upon by an appellate court. The case now goes back to the trial court to correct mere procedural errors which obviously could have been corrected on appeal from the judgment of March 14, 1935. That judgment became final upon the dismissal of the appeal therefrom for failure to file a transcript, and should have been upheld as res judicata in the case of Greenfield v. Mather, 14 Cal.2d 228 [93 P.2d 100]. The clearly erroneous decision of this court in holding to the contrary in the last cited ease is the cause of this travesty on justice, but as stated at the beginning of this opinion, the decision of this court in that case is now final, and is res judicata on the issues determined thereby even though erroneous. (15 Cal.Jur. 104.)