Fazzi v. Peters

• Decision Date: 16 May 1968
• Docket Number: S.F. 22585
• Citation: 440 P.2d 242,68 Cal.Rptr. 170,68 Cal.2d 590
• Parties: , 440 P.2d 242 Adolph R. FAZZI et al., Plaintiffs and Respondents, v. Robert E. PETERS, Defendant and Appellant.
• Court: California Supreme Court

Page 170

68 Cal.Rptr. 170

68 Cal.2d 590, 440 P.2d 242

Adolph R. FAZZI et al., Plaintiffs and Respondents, v. Robert E. PETERS, Defendant and Appellant.

S.F. 22585.

Supreme Court of California In Bank.

May 16, 1968.

Philip N. Schmidt, San Mateo, for defendant and appellant.

Nagle, Vale & McDowall and Vernon V. Vale, San Mateo, for plaintiffs and respondents.

SULLIVAN, Associate Justice.

In this case we simply reaffirm the seemingly self-evident proposition that a judgment in personam may not be entered against one not a party to the action. In so doing we disapprove the case of Calimpco, Inc. v. Warden (1950) 100 Cal.App.2d 429, 224 P.2d 421, insofar as it holds or implies to the contrary.

Peters & Christoferson is a copartnership licensed by the state as a general building contractor. On March 31, 1961, plaintiff property owners brought the instant action against the City of San Mateo, Peters & Christoferson, two other copartnerships, a corporation, seven individuals (among whom were neither Peters nor Christoferson), and one hundred Does. The complaint alleges that 'the defendant PETERS & CHRISTOFERSON was a co-partnership consisting of First through Fifth Does inclusive as the members thereof; * * *.' It further alleges that the true names of all Does are unknown, and prays for leave to insert the true names of Does when such are ascertained. (See Code Civ.Proc., § 474.)

The summons as originally issued named neither Peters (appellant herein) nor Christoferson as an individual party defendant. S. T. Christoferson was served with summons and complaint as a person sued under the fictitious name of Doe, but the complaint was never amended to substitute his true name in place of said fictitious name. Robert E. Peters was not served as a person sued under the fictitious name of Doe, but he was served with summons and complaint on July 8, 1963. According to the stipulation on appeal the summons served upon Peters had the following notice on the face thereof: 'To the person served: You are hereby served in the within action or proceeding on behalf of Peters & Christopherson (sic), a Copartnership (CCP 388). You are also served as an individual.' (See Code Civ.Proc., § 410.) The complaint was never amended to name Peters as a party defendant. The body of the complaint makes no mention of Peters individually.

Neither Peters, nor Christoferson, nor Peters & Christoferson, appeared in the action, and on July 31, 1964, plaintiffs requested the clerk to enter the default 'of the Defendants ROBERT E. PETERS and S. T. CHRISTOPHERSON (sic), served herein as First Doe, individually and partners of PETERS & CHRISTOFERSON, and PETERS & CHRISTOPHERSON (sic), a co-partnership. * * *' After hearing, the judgment by default was entered on March 12, 1965, and it was therein adjudged that the several plaintiffs recover from 'the defendants ROBERT E. PETERS and S. T. CHRISTOPHERSON (sic), individually and doing business as PETERS & CHRISTOFERSON, a copartnership, jointly and severally,' amounts totalling approximately $49,000.

There was no appeal from the judgment. However, on October 8, 1965, after an attempted examination of him as a judgment debtor, 'ROBERT E. PETERS, as an individual' moved that the judgment be set aside as to him because 'The judgment as to ROBERT E. PETERS as an individual is void on the face of the record, in that the record reveals that the Court had no jurisdiction to enter an in personam judgment against ROBERT E. PETERS as an individual.' ¹ On December 10, 1965, the court denied the motion and issued a memorandum of decision which stated: 'The Motion to set aside Default is DENIED (Calimpio (sic) vs Warden et al. 100 Cal.App.2d 429 at 444 (224 P.2d 421)).' Peters has appealed from the order denying his motion to set aside the default judgment.

Former section 388 of the Code of Civil Procedure ² provided as follows: 'When two or more persons, associated in any business, transact such business under a common name, whether it comprises the names of such persons or not, the associates may be sued by such common name, the summons in such cases being served on one or more of the associates; and the judgment in the action shall bind the joint property of all the associates, And the individual property of the party or parties served with process, in the same manner as if all had been named defendants and had been sued upon their joint liability.' (Italics added.)

The sole question in this case is whether former section 388 permits the rendition of a judgment binding the individual property of an alleged partner served with process in, but not made a party to, an action against the partnership wherein the latter is sued by its common name. The section itself is ambiguous on this point. On the one hand it provides that individual property of 'the party or parties' served with process is bound by the judgment. On the other hand, it states that such individual property is to be bound 'in the same manner as if all had been named defendants and had been sued upon their joint liability.' Without pausing to consider the possible interpretations of this language, we proceed to consider the single California case whose result purports to resolve its manifest ambiguity.

In Calimpco, Inc. v. Warden, supra, 100 Cal.App.2d 429, 224 P.2d 421, joint venturers in the construction of houses sued materialmen to recover the statutory penalty for usury. The plaintiffs had entered into an agreement with the materialmen whereby the latter, in consideration of their release of mechanics' liens, were to receive portions of the proceeds from the sale or rental of certain properties held in trust, together with fee title to some of said properties upon termination of the agreement. Among the materialman-defendants in the suit were Warden Bros., a copartnership, and Mills & Hinz Tile Company, a copartnership. Apparently, judgments were entered against each of these partnership defendants; individual judgments were also entered against one Warden and one Mills.

It does not appear whether Warden was made a party to the lawsuit. ³ However, it does appear, or can be inferred from the language of the court, that in the answer filed either by him individually or by the partnership it was admitted that he was a member of the Warden Bros. partnership. The Court of Appeal held that the individual judgment against Warden was proper. Relying upon former sections of the Civil Code (now sections 15013 and 15015 of the Corporations Code) dealing with the joint and several liability of partners for partnership obligations, the Court of Appeal concluded: 'In view of the sections and the admissions in the answer, the court had the right to award a joint and several judgment against both the partnership and the admitted partner.' (100 Cal.App.2d at p. 444, 224 P.2d at p. 432.)

As to Mills, the court stated: 'The same situation applies to Mills, who was a member of the copartnership of Mills & Hinz Tile Company. ⁴ Mills individually was not named as a party. However, the action against the partnership was in its common name and hence comes within the provisions of section 388 of the Code of Civil Procedure. The return of service of summons, which we have had brought up from the trial court, shows that he was served. Therefore the judgment, pursuant to that section, is proper. '* * * the judgment in the action shall bind the joint property of all the associates, and the individual property of the party * * * served with process, in the same manner as if all had been named defendants and had been sued upon their joint liability." (100 Cal.App.2d at pp. 444--445, 224 P.2d at p. 432.)

The Calimpco case relied on no prior authority in reaching the indicated conclusions. To our knowledge no reported case subsequent to Calimpco has relied upon it in support of the proposition underlying those conclusions, to wit, that former section 388 permitted the rendition of a judgment binding the individual property of an alleged partner served with process in, but not made to a party to, an action against the partnership wherein the latter was sued by its common name.

We believe that this proposition is contrary to an elementary common law principle of jurisprudence; that section 388 of the Code of Civil Procedure, examined in the light of its legislative history, was never intended to abrogate that principle in suits against unincorporated business associations; and that the pertinent holding of Calimpco must be disapproved.

The elementary common law principle to which we have reference is that a judgment may not be entered either for or against one not a party to an action or proceeding. (See 49 C.J.S. Judgments § 28, pp. 68--71; 30A Am.Jur., Judgments, § 73, p. 215.) The law of California is in agreement with this principle. 'It is the general rule that a judgment may not be entered either for or against a person who is not a party to the proceeding, and any judgment which does so is void to that extent.' (In re Wren (1957) 48 Cal.2d 159, 163, 308 P.2d 329, 331; see Community Redevelopment Agency of Los Angeles v. Superior Court (1967) 248 Cal.App.2d 164, 176, 56 Cal.Rptr. 201; Wong v. Superior Court (1966) 246 Cal.App.2d 541, 546, 54 Cal.Rptr. 782; Estate of Majtan (1965) 237 Cal.App.2d 7, 21, 46 Cal.Rptr. 561; Hutchinson v. California Trust Co. (1941) 43 Cal.App.2d 571, 575--576, 111 P.2d 401; Lloyd v. County of Los Angeles (1940) 41 Cal.App.2d 808, 812, 107 P.2d 622; Samter v. Klopstock Realty Co. (1939) 31 Cal.App.2d 532, 535, 88 P.2d 250; Overell v. Overell (1937) 18 Cal.App.2d 499, 502 64 P.2d 483; see also 1 Witkin, Cal. Procedure, Jurisdiction, § 136, pp. 398--399.) ⁵

The legislative history of section 388 manifests no indication that that section was intended to alter or abrogate this principle in the case of partnership defendants; on the contrary, it manifests a continuing legislative effort to permit efficient enforcement...