Hartford v. Superior Court In and For Los Angeles County

• Decision Date: 05 December 1956
• Citation: 304 P.2d 1,47 Cal.2d 447
• Court: California Supreme Court
• Parties: George Huntington HARTFORD, II, Petitioner, v. The SUPERIOR COURT of the State of California, in and for the COUNTY OF LOS ANGELES, Respondent. Edward Barton Colt, a Minor, by Florence Barton Brangenberg, his Guardian ad litem, Real Party in Interest. L. A. 24144.

Page 1

304 P.2d 1

47 Cal.2d 447

George Huntington HARTFORD, II, Petitioner, v. The SUPERIOR COURT of the State of California, in and for the COUNTY OF LOS ANGELES, Respondent Edward Barton Colt, a Minor, by Florence Barton Brangenberg, his Guardian ad litem, Real Party in Interest.

L. A. 24144.

Supreme Court of California, in Bank.

Dec. 5, 1956.

Loeb & Loeb and Herman F. Selvin, Los Angeles, for petitioner.

Harold W. Kennedy, County Counsel, William E. Lamoreaux, Asst. County Counsel, Los Angeles, David Mix, Granada Hills, and Thomas H. Carver, Deputy County Counsel, Los Angeles, for respondent.

Bernard B. Cohen and Henry S. Cohen, Los Angeles, for real party in interest.

TRAYNOR, Justice.

On November 30, 1955, plaintiff, by his guardian ad litem, commenced an action pursuant to Civil Code section 231 ¹ to secure a declaration that defendant is his father. In his verified complaint he alleged that he is seventeen years old and that since he was ten days old he has been in the exclusive care and custody of his grandmother with whom he resides. For more than eight years plaintiff and his grandmother have been domiciled in Los Angeles County, California, 'and during all of said time have been and now are residents of and physically present in said County and State.' Plaintiff was born in New York in 1938, the child of his mother and defendant, who were never married. His mother died in 1941. To conceal the fact that plaintiff was his natural child, defendant directed that the names of plaintiff's grandmother and stepgrandfather be entered as his parents on his birth certificate, and this was done. Defendant has always 'exhibited sincere interest in and concern for the welfare of plaintiff,' and has visited him in California when he has been in the state in connection with businesses he maintains here. He established a trust fund of which plaintiff is beneficiary and from which his guardian receives an income of over $800 per month for plaintiff's care and maintenance, and ultimately plaintiff will receive the corpus of the trust, which is now worth more than $375,000. Accordingly, 'it is not necessary for defendant to pay or contribute any money or anything else toward plaintiff's support.' Shortly before the commencement of this action, defendant 'for the first time denied, and he now denies that he is the natural father of plaintiff and denies that the relationship of parent and child exists between them.' Defendant came to California on July 10, 1955, on a business trip but left on August 31, 1955, on learning that plaintiff intended to file this action. Plaintiff finally alleges that although he 'is identified on his birth certificate as 'Edward Barton Colt,' for many years last past plaintiff has refrained from using the surname 'Colt' and has used only the name 'Edward Barton.' Plaintiff has obtained a Federal Social Security number under the name of 'Edward Barton,' and is registered in school and for many years has been and now is known among his friends and acquaintances as 'Edward Barton.' In the near future, plaintiff expects to become a member of the United States Armed Forces, and also intends to apply for a passport so that he may travel abroad. Considerable confusion has resulted and will result from plaintiff's use of the name 'Edward Barton' when he is identified on his birth certificate as 'Edward Barton Colt.' Moreover, because his birth certificate falsely states that John Colt is his father, and plaintiff is identified thereon as 'Edward Barton Colt,' it is impossible for plaintiff legally to establish his true identity or that of his true father. It is therefore necessary that it be judicially determined that defendant George Huntington Hartford, II, is the natural father of plaintiff and that the relation of parent and child exists between them, so that hereafter plaintiff will have no difficulty legally establishing the true identity of himself and his father, especially when he enters the Armed Forces and when he applies for a passport.' The complaint concludes with the prayer that 'the Court by its decree adjudge that defendant is the natural father of plaintiff, and that the relation of parent and child exists between plaintiff and defendant * * *.'

Pursuant to Code of Civil Procedure section 412 plaintiff secured an order for service by publication based on an affidavit stating that defendant resides outside of the state, and defendant was personally served in the State of New York. (See, Code Civ.Proc. § 413.) The order for service by publication provided that it was 'applicable only to that portion of the relief prayed for in the complaint which is based on an action 'in rem'.'

On January 6, 1956, defendant appeared specially and made a motion for an order quashing service. Affidavits were filed in support of and in opposition to the motion, which was denied on January 11th. The order of denial also provided: 'Pursuant to stipulation defendant is allowed 30 days to answer or otherwise plead to plaintiff's complaint.' On February 9th, defendant filed this petition for a writ of mandate to compel the court to enter its order quashing the service of summons.

The procedure for attacking the jurisdiction of the court over the person of defendant by motion to quash or writ of mandate is now set forth in Code of Civil Procedure sections 416.1 ² and 461.3, ³ which were enacted in 1955.

Since in the present case written notice of the court's order denying the motion to quash service was served on January 12th and since defendant's petition for a writ of mandate was not filed until 18 days later and no extension pursuant to section 416.3 was obtained, plaintiff contends that the writ was filed too late. Defendant contends, however, that he sufficiently complied with the statute by filing his petition within the 30 days allowed him under section 416.1 to 'answer or otherwise plead to plaintiff's complaint.'

The obvious purpose of sections 416.1 and 416.3 is to permit a defendant to challenge the jurisdiction of the court over his person without waiving his right to defend on the merits by permitting a default to be entered against him while the jurisdictional issue is being determined. (See, 1 Witkin, California Procedure, 1955 Statutory Supplement, 17-19.) To achieve this purpose, when relief has been denied in the trial court, is is necessary that relief be sought in the appellate court before the time to plead has expired. Otherwise the defendant would be compelled to elect between permitting the entry of a default or waiving the jurisdictional issue by pleading to the merits. If, however, the writ is filed in the appellate court within the additional 20-day period permitted to plead in the trial court under section 416.1, no purpose would be served by requiring the defendant to duplicate the 20-day extension secured under section 416.1 by securing a concurrent extension under section 416.3. Accordingly, when the two sections are construed together, it is apparent that they provide alternative methods of securing an additional 20-day period to petition for a writ of mandate and that a failure to secure an extension under the provisions of section 416.3 does not preclude issuance of the writ, if the petition is filed within the time permitted to plead under section 416.1.

Defendant contends that the relief sought by plaintiff is necessarily a personal judgment against him and that since he is not a California domiciliary, see, Milliken v. Meyer, 311 U.S. 457, 61 S.Ct. 339, 85 L.Ed. 278, it would deny him due process of law to sustain the service of process made outside the state. It is unnecessary to decide whether any constitutional basis other than domicile may exist in this case for asserting personal jurisdiction over defendant by process served elsewhere. (See, Ehrenzweig, Personal Jurisdiction, 65 Yale L.J. 289; Ehrenzweig and Mills, Personal Service, 41 Calif.L.Rev. 383.) Code of Civil Procedure section 417 provides that '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.' Since the term resident in this statute means domiciliary, Smith v. Smith, 45 Cal.2d 235, 240, 288 P.2d 497, and since it is undisputed that defendant was not at any time relevant herein a domiciliary of California, section 417 precludes the entry of a personal judgment against him.

Plaintiff contends that since the purpose of the proceeding is only to establish the status of the parties as parent and child, it is a proceeding in rem and that therefore personal service within the state is not required. He argues that the state of his domicile has sufficient interest in his status as defendant's child to adjudicate that status without securing personal jurisdiction over defendant. We do not believe, however, that because the present proceeding is concerned solely with status it must necessarily be classified as a proceeding in rem, particularly if such a classification would result in making the judgment binding as to the status of the parties in subsequent litigation between them or others. The purpose of the particular action brought under Civil Code section 231 must be considered to determine how it should be characterized.

That section provides for declarations of both the existence and nonexistence of the relation of parent and child by birth or adoption, and a distinction may reasonably be drawn between a proceeding to establish that the defendant is not the plaintiff's parent and one to establish that he is. By analogy to the rule applicable to ex parte divorces, it could reasonably be contended that the state may adjudicate the...