City of Los Angeles v. Morgan

• Decision Date: 30 July 1951
• Citation: 105 Cal.App.2d 726,234 P.2d 319
• Court: California Court of Appeals Court of Appeals
• Parties: CITY OF LOS ANGELES v. MORGAN et al. LOS ANGELES ROCK & GRAVEL CO. v. McKENNA. Civ. 17946.

Page 319

234 P.2d 319

105 Cal.App.2d 726

CITY OF LOS ANGELES v. MORGAN et al.

LOS ANGELES ROCK & GRAVEL CO. v. McKENNA.

Civ. 17946.

District Court of Appeal, Second District, Division 1, California.

July 30, 1951.

Rehearing Denied Aug. 27, 1951.

Hearing Denied Sept. 27, 1951.

Ray L. Chesebro, City Attorney, by Arthur Wm. Green, Deputy City Attorney, Los Angeles, for plaintiff.

Cal.App.therine A. McKenna, in propria persona.

Vaughan, Brandlin & Wehrle, Holbrook & Tarr, Lawrence L. Otis, Gilbert E. Harris, and James F. Healey, Jr., by J. R. Vaughan and Pat B. Trapp, all of Los Angeles, for respondent.

HANSON, Justice pro tem.

In this action by the City of Los Angeles to condemn a parcel of land, originally subdivided into 39 residential lots, the trial court ruled that respondent, Los Angeles Rock and Gravel Company, a limited partnership, was the absolute owner of the property, and hence entitled to the condemnation award, and that appellant Catherine A. McKenna had no right, title or interest in the property.

The trial court found that the respondent had a perfect title of record deraigned from its predecessor corporations, the initial one having acquired the property prior to 1923 from the then title owners of record. Moreover, the court found that respondent and its predecessors had been in continuous and actual possession of the realty involved for more than 20 years 'under claim of right * * *' and had held it 'adversely, openly and notoriously without let or hindrance or claim thereto by defendant Catherine A. McKenna, or any other person whomsoever.'

The chain of title under which appellant Catherine A. McKenna claims stems from stray deeds executed by persons who at the time of making the deeds were total strangers to the record ownership of the land purportedly conveyed. In the McKenna chain of title there appear two deeds executed in January, 1923, one by H. B. Hunt and the other by J. W. Wood to a woman by the name of J. Truitt as grantee. Neither one of the grantors had any title of record. The appellant, who appears here in propria persona, testified that the woman J. Truitt was a 'dummy' who held such 'title' as she had acquired through the deeds for one Smith, a client of appellant. Shortly after J. Truitt acquired her deeds suit was instituted in February, 1923, in her behalf to quiet her title to the property therein described by an attorney named Trusten P. Dyer, who at the time or very shortly thereafter became a co-partner with appellant in the practice of the law. In July, 1923, after the decree had been entered appellant was substituted into the case as co-counsel with Dyer. The predecessor corporation of the respondent, which was the title owner of record of the property, was not named as a party defendant in the Truitt title quieting action, but purportedly was served under the name of one of the fictitiously named defendant corporations. The sworn return of service of summons in that action made by one Henry Hunt, who was not called as a witness in the instant case or whose absence was not accounted for, states that service was made on one Lewis, vice-president of the Los Angeles Rock and Gravel Company. The trial court in the instant case found that no person by the name of Lewis was ever a vice-president of the corporation or otherwise employed by it and that the return of service was 'wholly and wilfully false, fraudulent and fictitious.'

The decree in the quiet title action signed April 12, 1923, recites that personal service was made as follows: 'Los Angeles Rock and Gravel Co., A Corporation sued under the fictitious name in the complaint of John Green, (a corporation) by serving M. Lewis, Vice President of the Corporation.' The decree was recorded in the recorder's office on March 27, 1924.

Such interest as the 'dummy' J. Truitt acquired by the deeds mentioned and through the decree in the quiet title action passed to appellant sometime prior to 1929. What the consideration was is not shown by the evidence in the instant case. During all the years here in question the taxes against the property have been paid by respondent or its predecessors. Likewise during all those years the appellant has evinced no interest in the property by any claim made to it, although the jury by its condemnation award valued the property at $240,000.00. To be sure the appellant made a claim, which the trial court found was spurious--and rightly so--, that appellant in 1929 sold gravel rights, and not the fee, in the lands to respondent's predecessor. Appellant did, in fact, sell gravel rights in a parcel of land--miles removed--to respondent's predecessor.

As grounds for reversal appellant contends (1) that the recording on March 27, 1924, in the County Recorder's office of the quiet title decree obtained by J. Truitt gave constructive notice of its contents to the Gravel Co., i. e., among other things, that it had been served with process, and if in fact this was untrue it was yet incumbent upon the company to attack the decree within three years for fraud, if fraud there was in obtaining the decree (Code Civ.Proc., sec. 338, subd. 4); (2) that the respondent, when it acquired title by conveyance in 1943 from its immediate predecessor, had constructive notice of the contents of the J. Truitt decree because it was then of record and that title was then vested of record in the appellant by deed to her from J. Truitt; and (3) that the evidence seeking to impeach the sworn return of service and the finding of the court that service had not been made was inadmissible. A recital of the controlling precedents will suffice to answer all the errors assigned.

Under the due process clause of the federal constitution a personal judgment rendered without service of process on, or legal notice to, a defendant is not merely voidable, but void, in the absence of a voluntary appearance or waiver. McDonald v. Mabee, 243 U.S. 90, 37 S.Ct. 343, 344, 61 L.Ed. 608. Such a judgment 'is as ineffective in the state [where it is rendered] as it is outside of it.' McDonald v. Mabee, supra. If the invalidity of the judgment is apparent by an inspection of the judgment or the judgment roll it may be vacated upon motion at any time after its entry. People v. Greene, 74 Cal. 400, 16 P. 197. If, however, the invalidity is not thus apparent, it may be set aside by motion, if such motion is filed within a reasonable time, i. e., not longer than the time set forth in Code Civ.Proc., sec. 473. Norton v. Atchison, etc., R. R. Co., 97 Cal. 388, 30 P. 585, 32 P. 452. Otherwise, the challenge permitted is limited to an action in equity to vacate the judgment. People v. Davis, 143 Cal. 673, 77 P. 651. Where it is contended, as here, that the court had no jurisdiction to enter the decree for want of service upon respondent's predecessor, evidence is admissible to challenge the fact of service. Ever since the decision in Lapham v. Campbell, 61 Cal. 296, it has been the accepted rule in this state that a sworn return of service of a summons may be impeached by evidence that contradicts it. As was aptly said by Mr. Justice Vallee in Sipe v. McKenna, 88 Cal.App.2d 1001, 200 P.2d 61, 64 (in which appellant herein was respondent): 'It has long been established that a false affidavit of service constitutes extrinsic fraud. A party is thus prevented from having his day in court. Courts of equity will relieve a party from an unjust judgment rendered against him when, without service of process, either actual or constructive, no opportunity...