Opinion
Hearing Granted Feb. 11, 1942.
Appeal from Superior Court, Los Angeles County; Frank G. Swain, Judge.
Action by K. W. Thompson against Marie E. Cook and others on two notes. From an order denying defendants’ motion to vacate an order reviving a default judgment for plaintiff, defendants appeal.
Reversed. COUNSEL
Hankins & Hankins and Olin F. Nuckolls, all of San Francisco, for appellants.
Geo. W. Zent, of Hollywood, for respondents.
OPINION
MOORE, Presiding Justice.
This action originated on the 21st day of October, 1935, when plaintiff sued to recover from defendants the amount due on two promissory notes. Defendants having defaulted, judgment was entered February 13, 1936, in favor of plaintiff in the sum of $4,012.29 with interest and costs. Execution was issued March 13, 1936, under which the sheriff of Glenn county levied upon certain real property which he sold on the 17th day of August, 1936, to the plaintiff for the amount of the judgment. The writ was returned showing the judgment wholly satisfied.
Some months prior to the execution sale, the property had been conveyed to the Glenn-Colusa irrigation district on account of the failure of the defendant to pay water assessments. In June, 1937, the irrigation district instituted this action against plaintiff and others for the purpose of quieting title to the land in question. Judgment was entered quieting the title to the land in favor of the district. Having incorporated the foregoing facts in his affidavit, plaintiff filed a motion for revival of his judgment and on June 9, 1938, the motion was granted. On October 15th defendants learned of the revival of the judgment and on the 12th of March, 1941, they filed an appropriate motion to vacate the order of revival. Their motion was denied and it is from this order denying their motion that they take this appeal.
In view of the delay in presenting their motion to vacate the order of revival, we might readily conclude to affirm the order if it could be considered voidable only, but in view of our conclusion that the order of revival was made in violation of the doctrine of due process, we must of necessity consider the validity of the proceedings upon which the order of revival was made.
The motion for revival of the judgment was based upon section 708, Code of Civil Procedure, which provides "* * * If the purchaser of property at sheriff’s sale, or * * * fail to recover possession * * * because the property sold was not subject to execution and sale, the court having jurisdiction thereof must, after notice and on motion of such party in interest, or his attorney, revive the original judgment in the name of the petitioner, for the amount paid by such purchaser at the sale, with interest * * *".
That section provides for the revival of the judgment under the circumstances therein enumerated after notice to the judgment debtor. Because the judgment had been entered upon the default of the defendants, plaintiff concluded that he was under no obligation to serve a notice of his intended motion to revive the judgment. He bases his contention upon section 1014 of the Code of Civil Procedure which provides "* * * But where a defendant has not appeared, service of notice of papers need not be made upon him unless he is imprisoned for want of bail".
The determination of this appeal, therefore, must be made according to whether it is controlled by the provisions of section 708 or section 1014. It is a rule of statutory construction that where two separate statutes deal with the same subject the section which is specific in its nature must govern rather than that which is general. Section 708 deals specifically with the subject of the revival of judgments. It must therefore govern under circumstances set forth in that section.
The "satisfaction" of a judgment is subject (1) to the power of equity to set it aside for fraud or mistake, or (2) to vacate it pursuant to section 473, Code of Civil Procedure, which provides a procedure for relief from an "order, or other proceeding" and for vacating "any void judgment or order". Gill v. Peppin, 41 Cal.App. 487, 182 P. 815. If a judgment is to be erased by virtue of legal proceedings and of the entries usually made by the constituted authorities, the court is without jurisdiction to make any order with reference thereto in the absence of notice. Likewise where a valid judgment has been wholly satisfied upon the records the judgment debtor has an interest in such entry and is entitled to notice of any proposed action to defeat such satisfaction. The exercise of authority over such judgment without notice is wholly arbitrary. It is the general rule that notice must be given whenever the order sought may affect the rights of the adversary party. McDonald v. Severy, 6 Cal.2d 629, 59 P.2d 98. All proceedings under section 473, Code of Civil Procedure, for relief on account of excusable neglect require notice. It is likewise indispensable under section 685 in proceedings for the revival of a judgment after the lapse of five years. Tolle v. Doak, 12 Cal.App.2d 195, 55 P.2d 542. Notice as required by section 708 was authorized as the means of enabling the court again to acquire jurisdiction of the parties. "It means the statutory instrumentality of knowledge--the formal process emanating from the source, and served in the manner, prescribed by the statute." 20 Cal.Jur. 243. "After entry of a final judgment the power to change it is gone (authorities) except as this may be authorized by the rules governing amendments." 14 Cal.Jur. 938.
No litigant can be legally deprived of his rights by any proceeding unless he shall have first received notice of the intended motion and is granted the hearing. Higgins v. Kay, 168 Cal. 468, 143 P. 710. Under the doctrine of due process, it is inconceivable that a litigant may properly be the subject of an order entered without his knowledge. If that were done the facts averred in the supporting papers of his adversary would be established without his contradiction or scrutiny, and it is not unlikely that the court may fail to observe that the affidavit of merits fails to show that the title of the property sold under the execution was worthless. For illustration, in the case at bar, there was no showing in plaintiff’s affidavit in support of his motion that the period of equity of redemption as against the sale for delinquent assessments had expired. Neither was it shown that plaintiff could not have redeemed the property from the sale for delinquent assessments and thereby have acquired a clear title. Moreover it is not shown in the affidavits of merit that the plaintiff did not, under the execution sale, acquire valuable rights in the land sold equal to or in excess of the judgment and the delinquent assessments. Nor is it shown that he did not negligently permit valuable rights acquired at the execution sale to be thereafter foreclosed for failure to pay delinquent assessments.
Section 1014 does not control in the case at bar. That section relieves the plaintiff of the necessity of serving notice of intended actions as to defaulting parties prior to the entry of judgment. After such entry the defaulting judgment debtor is placed in a new relationship to the plaintiff. If his property is to be sold under execution he must be notified by the sheriff as provided by statute. Sec. 692, Code Civ.Proc. If he would be enjoined from the sale of his property, he must receive notice and be granted a hearing before the injunction may issue. If he is to undergo examination in aid of execution, he must be cited to appear in court, before such examination may take place. By the provisions of all the sections requiring notice and the construction given them by the courts, we are forced to the conclusion that it was the intention of the legislature, in enacting section 708, to retain unimpaired the principle of due process by requiring that every judgment debtor must receive notice of the intended motion of the plaintiff to revive the original judgment for the "amount paid by such purchaser" where the property sold was not "subject to execution and sale". 34 C.J. 668. When the judgment has been satisfied it loses all force and effect. Its revival is a new judgment and is effective from the date of its revival. Merguire v. O’Donnell, 139 Cal. 6, 72 P. 337, 96 Am.St.Rep. 91; Hitchcock v. Caruthers, 100 Cal. 100, 34 P. 627. While the judgment which has been erroneously "satisfied" may be revived by an independent suit in equity, in the interest of economy and simplicity, the legislature enacted section 708. But there is no indication within or without the section that the defendant should receive any less notice under the statutory proceeding than in a suit at equity.
The order is reversed.
McCOMB, J., concurred.
W. J. WOOD, Justice (dissenting).
I dissent. If the order is to be considered as void on its face defendants would unquestionably have the right to have it set aside at any time. The record on the present appeal, however, shows the order to be valid on its face. Where, as in the case now before us, the record of a superior court is silent on the question of service, the presumption is that the court hearing the cause had jurisdiction of the parties. Fletcher v. Superior Court, 79 Cal.App. 468, 473, 250 P. 195. "It is true that where the record is silent as to what was done it will be presumed that what ought to have been done was not only done but rightly done." Steuri v. Junkin, 27 Cal.App.2d 758, 760, 82 P.2d 34, 35.
Although notified in writing on October 15, 1938, of the order made on July 6, 1938, reviving the judgment, defendants did not file their motion to set aside the order of revival until March 12, 1941, nearly three years after the order was entered and the notification to defendants of its entry. Since they sought to set aside an order which is valid on its face they should have filed their motion within a reasonable time. In Smith v. Jones, 174 Cal. 513, 163 P. 890, 891, the summons was returned with an affidavit showing that the copy of the summons and complaint had been served on the defendant Frank F. Fisher on April 9, 1912, in Los Angeles county. The default of Fisher was taken and judgment was entered against him on May 11, 1912. Fisher presented a motion on September 5, 1913, to set aside the default and vacate the judgment on the ground that he had never been served in the action. He filed his affidavit, in which it was set forth that he was not in the state of California during the year 1912 and that he had no knowledge of the pendency of the action until about one year after the rendition of the judgment against him. The motion was heard on this affidavit and the judgment roll in the case, nothing further being presented. The court thereafter made an order setting aside the default and the judgment. On appeal the Supreme Court reversed the order, the court stating: "But in order to invoke the power of the court to set a judgment aside on the ground that it was entered against a party defendant without service of process on him at all, the motion must be made within a reasonable time, or the right to make it is lost, and the party is remitted to an action in equity to have the judgment declared void." The court further held that, notwithstanding the motion was not made under section 473 of the Code of Civil Procedure "it has, nevertheless, been the longsettled rule in this state that in determining whether a motion to set aside a judgment, decree, or order made independent of said section is presented within a reasonable time, the period fixed in said section within which motions under it may be made is the standard or criterion in all cases. And so as to motions such as the one here made, based on the ground that no service of process was made on the defendant, it is expressly held that in no case can the time of making them be extended beyond the time limit specified in section 473 for making similar motions under that section." In Thompson v. Thompson, 38 Cal.App.2d 377, 101 P.2d 160, 161, it was held: "A motion to vacate a judgment not void on its face, based either upon statutory grounds or in the exercise of the inherent powers of the court, must be made within a reasonable time, not exceeding the maximum time limited by statute, whether such statute is applicable either expressly or by analogy."
The motion of defendants was not made within a reasonable time. In my opinion the order should be affirmed.