Allen v. Superior Court

• Decision Date: 16 December 1952
• Citation: 251 P.2d 358
• Court: California Court of Appeals Court of Appeals
• Parties: . * Civ. 19304. District Court of Appeal, Second District, Division 3, California

Page 358

251 P.2d 358

ALLEN v. SUPERIOR COURT IN AND FOR LOS ANGELES COUNTY et al. ^*

Civ. 19304.

District Court of Appeal, Second District, Division 3, California.

Dec. 16, 1952.

Hearing Granted Feb. 11, 1953.

Stephen J. Grogan and Henry N. Cowan, Los Angeles, for petitioner.

No appearance for respondent.

Engelhardt, Campbell & Singer and Leon I. Singer, Los Angeles, for real parties in interest.

VALLEE, Justice.

This is an original proceeding for a writ to prohibit the superior court from taking further proceedings in an action entitled Bromberg v. Cayton, No. 547103, on the ground it has not acquired jurisdiction of Robert W. Allen, the only defendant in the action, petitioner here.

Action 547103 was filed July 12, 1948. It is for damages for personal injuries resulting from an automobile collision. The accident occurred on November 1, 1947. On July 12, 1948, a summons was issued. On December 9, 1949, an alias summons was issued. On March 25, 1952, a second alias summons was issued. On April 29, 1952, on an affidavit therefor made by the plaintiff Irving Bromberg, an order for publication of summons was made. The order stated it appeared to the court that defendant Robert W. Allen 'resides out of California, and cannot after due diligence be found within State of California,' and that defendant resides in Oregon. The defendant was served personally with the summons and complaint in the state of Oregon on May 3, 1952.

On May 29, 1952, the defendant appeared specially by filing a notice of motion 1) to quash the order for publication of summons on the ground it was in excess of the power of the court, and 2) to quash the service of summons on the ground the court had not acquired jurisdiction of the defendant because the action was in personam. In support of the motion, the defendant filed his affidavit which stated: 1) On November 1, 1947, the date of the accident, he was a resident of Los Angeles, California. 2) He continued to reside in Los Angeles until June 3, 1949. 3) From June 3, 1949, until September 1, 1951, he resided in Oakland, California. 4) On September 1, 1951, he moved to, and has since resided in, Oregon. 5) He registered as a voter in Oregon about May 1, 1952. 6) He has leased a home in Oregon. 7) Since removing from California to Oregon, he and his wife have resided in Portland. 8) He does not intend to return to California, and has had no such intention since moving to Oregon. 9) At the time he moved to Oregon, he transferred his business activities to that state, and ever since has conducted his business activities in and from Oregon. 10) Since he moved to Oregon, his family has resided with him there. 11) He maintains his bank account in Oregon.

In opposition to the motion, the plaintiffs filed an affidavit of a deputy sheriff of Multnomah County, Oregon, to the effect that on April 30, 1952, another deputy, in an endeavor to serve the defendant, ascertained he had left Portland the day before, stating he was going to Tillamook, Oregon, and would be at the hotel there. The defendant was served in Tillamook on May 3, 1952. At the hearing of the motion, it appeared without contradiction that at the time the order for publication of the summons was made, and at the time the defendant was served, he was a resident of, and domiciled in, the state of Oregon. The motion was denied.

In 1951, the Legislature enacted section 417 of the Code of Civil Procedure, which reads: 'Where jurisdiction is acquired over a person who is outside of this State by publication of summons in accordance with Sections 412 and 413, the court shall have the power to render a personal judgment against such person only if he was personally served with a copy of the summons and complaint, and was a resident of this State at the time of the commencement of the action or at the time of service.' ¹

In order that jurisdiction be acquired over a person who is outside of this state in accordance with sections 412 and 413 it must appear by affidavit that the person on whom service is to be made resides out of the state, or has departed from the state; and on the basis of the affidavit, that an order has been made that the service be made by the publication of the summons, among other things.

The first point pressed upon us by petitioner is that the affidavit was insufficient to support the order for publication. As we have said, the order for publication was made on the grounds that defendant 'resides out of California, and cannot after due diligence be found within State of California.' If the affidavit on which an order for publication of summons is made is insufficient, the court does not acquire jurisdiction and the order and any judgment based on such service is void. ² If the statements in the affidavit were sufficient to warrant the conclusion that the fact was that the defendant resided out of the state at the time of the application, the order for publication is authorized under section 412. ³ The affidavit on which the order was made satisfies the requirements of section 412. While it is inartificially drawn, and contains much hearsay, it clearly appears therefrom that defendant was then residing in Portland, Oregon. We conclude that the affidavit for publication of summons was sufficient to warrant the order.

Petitioner asserts section 417 does not apply retrospectively to actions commenced before its enactment. The real parties in interest say the section is procedural only, and that it is applicable to both pending and future actions. Petitioner does not question the constitutionality of section 417. In view of petitioner's position, and our conclusion, for the reasons to be stated, that section 417 does not apply retrospectively, we assume for the purpose of this opinion that it is constitutional and do not inquire into or decide that question. ⁴

Prior to the enactment of section 417, it was impossible to acquire jurisdiction in personam of a nonresident not present in this state, or of a resident of this state while he was absent from the state. ⁵

Section 3 of the Code of Civil Procedure reads: 'No part of it [Code Civ.Proc.] is retroactive, unless expressly so declared.' This rule applies to amendments. ⁶ The words 'retroactive' and 'retrospective' are used synonymously. ⁷ 'A retrospective law is one which affects rights, obligations, acts, transactions and conditions which are performed or exist prior to the adoption of the statute.' ⁸ Statutes are not given a retrospective operation unless it is clearly made to appear, either expressly or by necessary implication, that such was the legislative intent. ⁹ In determining such intent the courts have evolved a strict rule of construction against a retrospective operation and indulge in the presumption that the Legislature intended statutes, or amendments thereof, to operate prospectively only, and not retrospectively. ¹⁰ A statute should not be construed as to give it retrospective effect so as to affect pending litigation, unless a clear intent to the contrary is plainly manifest, either by express declaration or necessary implication. ¹¹

The presumption against retrospective operation does not apply to statutes relating merely to remedies and modes of procedure. ¹² Such statutes are not in fact retrospective; they operate only when and if the remedy or procedure is invoked, and thus, if the trial postdates the enactment, they operate in the future regardless of the time of occurrence of the events giving rise to the cause of action. ¹³ Mr. Chief Justice Gibson, speaking for the court, in Aetna Cas. & Surety Co. v. Ind. Acc. Comm., 30 Cal.2d 388 at page 394, 182 P.2d 159, at page 162, said that 'This reasoning, however, assumes a clear-cut distinction between purely 'procedural' and purely 'substantive' legislation. In truth, the distinction relates not so much to the form of the statute as to its effects. If substantial changes are made, even in a statute which might ordinarily be classified as procedural, the operation on existing rights would be retroactive because the legal effects of past events would be changed, and the statute will be construed to operate only in futuro unless the legislative intent to the contrary clearly appears.' ¹⁴ Under the guise of a mere change of procedure or substitution of remedies vested rights may not be destroyed or the obligations of contracts impaired. ¹⁵ Oftentimes the right and the remedy are so closely connected that any alteration in the remedy may adversely affect the right. ¹⁶ If a statute creates a new right or obligation it will not be construed to affect remedies or procedures as to causes of action arising before its passage. ¹⁷ In its final analysis, therefore, it is the operation of a statute which determines its character. ¹⁸

One of the jurisdictional requirements is jurisdiction over the person. ¹⁹ 'Lack of jurisdiction in its most fundamental or strict sense means an entire absence of power to hear or determine the case, an absence of authority over the subject matter or the parties.' ²⁰ The Legislature is without power by subsequent legislation of cure defects and omissions which go to the very jurisdiction of the court to act and which make its action void. ²¹ If originally there was a failure of jurisdiction in judicial proceedings no subsequent law can confer it. ²² A statute enlarging the jurisdiction of a court will not be construed as retrospective so as to operate on pending cases. ²³ '[W]here, by reason of noncompliance with the law regulating constructive service, jurisdiction has not attached, a retroactive statute cannot cure the defect.' ²⁴ In Taylor v. Datig, 123 Cal.App.Supp. 782, 11 P.2d 98, the municipal court had no jurisdiction of the action at the time it was begun. Before the case was tried, the law was amended so that at the time of trial it was within the jurisdiction of that court. After an exhaustive review of the authorities, the court, in a scholarly opinion...