McLellan v. Automobile Ins. Co. of Hartford, Conn.

• Decision Date: 20 November 1935
• Docket Number: No. 7475.,7475.
• Citation: 80 F.2d 344
• Parties: McLELLAN v. AUTOMOBILE INS. CO. OF HARTFORD, CONN., et al.
• Court: U.S. Court of Appeals — Ninth Circuit

80 F.2d 344 (1935)

McLELLAN v. AUTOMOBILE INS. CO. OF HARTFORD, CONN., et al.^*

No. 7475.

Circuit Court of Appeals, Ninth Circuit.

November 20, 1935.

V. L. Hash, of Phœnix, Ariz., for appellant.

Redman, Alexander & Bacon, of San Francisco, Cal., Kibbey, Bennett, Gust, Smith & Rosenfeld, of Phœnix, Ariz., and Geo. J. Zech, of San Francisco, Cal., for appellee.

Before WILBUR, GARRECHT, and DENMAN, Circuit Judges.

GARRECHT, Circuit Judge.

Error on the part of the court below in sustaining the demurrers to the appellant's complaint is urged as the basis of the present appeal.

The appellant brought an action against the appellees, in the superior court of Maricopa county, Ariz., seeking to recover damages of $5,000 from each of them. The suit was based upon a contract of insurance, to the rights under which the appellant claims to have been subrogated.

The third amended complaint, upon which the issues were presented to the court below, alleges, in substance, that Harry Soza died intestate on or about August 14, 1932; that thereafter, as the duly appointed and qualified special administrator of Soza's estate, the appellant instituted suit in the superior court of Maricopa county, Ariz., against the estate of Minnie Curless, deceased, to recover damages for injuries causing the death of the appellant's intestate through the alleged negligent operation of an automobile owned and operated by the said Minnie Curless, on or about August 14, 1932; and that on or about January 21, 1933, the appellant obtained a judgment in that suit, amounting to $7,500, against the estate of Minnie Curless.

The complaint further sets forth that, on March 2, 1932, each of the appellees executed an insurance policy whereby each appellee company, jointly and severally, agreed with the decedent, Minnie Curless, for a consideration, to pay $5,000 "for a personal injury or death resulting therefrom by reason of the" operation of the above-mentioned automobile, and to pay any loss or claim by reason of injury resulting in death, in a sum not to exceed $5,000. The policy is then set out in the pleading.

The complaint further alleges that the judgment recovered by the appellant has not been satisfied out of the Curless estate, which is without assets with which to pay it.

One of the allegations of the complaint is that each of the appellees was duly notified of the pendency of the action in the state court, and that each refused to defend or adjust, etc.

On petition of the appellees, the cause was removed from the state court to the court below.

Each appellee filed demurrers, an answer, and a motion for judgment dismissing the cause. The grounds for the demurrers were misjoinder of parties, misjoinder of causes of action, and the failure of the complaint to state facts sufficient to constitute a cause of action.

The court below sustained the separate demurrers of the appellees, and entered a judgment dismissing the cause. From that judgment the present appeal has been taken.

As the appellant points out in his brief, the sole issue here presented is whether or not, under the Constitution and the statutes of Arizona, there is a survival of a right of action in favor of the appellant administrator to recover against the administrator of the estate of the deceased alleged wrongdoer, damages for wrongful injury inflicted upon the appellant's intestate. This was the sole basis of the decision of the court below on the demurrers.

Accordingly, in our view of the case, it is unnecessary to consider the other questions raised by the appellees' demurrers.

There must first be disposed of, however, the contention urged by the appellant that the "remedy" of the appellees, "if they desire to object to the judgment obtained" in the state court, "is by a direct attack upon that judgment, and not by way of a collateral attack such as is made in the instant case." In support of this argument, the appellant asserts that under the contract of the appellees with the decedent Minnie Curless, "they were within the meaning of the rule making prior judgments conclusive, in this, that they were directly interested in the subject-matter of the suit and had a right to make a defense," etc.

It is hornbook law that a judgment wholly void for want of jurisdiction on the part of the court that rendered it, may be attacked collaterally. In Brecht v. Hammons, 35 Ariz. 383, 387, 388, 278 P. 381, 382, the court said:

"The question is as to the jurisdiction of the subject-matter. The action was one given, not by a provision of the common law, but, if at all, by the constitutional provision above quoted. If it falls within such provision, the court had jurisdiction of the subject-matter; if not, not. * * *

"We think the true rule is as follows: When a question as to the jurisdiction of the subject-matter is raised, the court must, of course, primarily determine its own jurisdiction. If its conclusion requires the actual or implied decision of a question of fact, then a determination necessarily based on that fact to the effect that the court has jurisdiction is conclusive as against collateral attack. When, however, the facts are admitted in the pleadings, and the court's determination is based upon an error as to the law arising out of the admitted state of facts, its decision is not conclusive, and the judgment, in case the decision was in error, is subject to collateral attack. Many cases cited."

Limited as the foregoing language is to judgments based upon causes of action not arising under the common law, it accords with general law.

In East Tennessee, Virginia & Georgia R. Co. v. Southern Telegraph Co., 112 U.S. 306, 310, 5 S.Ct. 168, 169, 28 L.Ed. 746, Mr. Chief Justice Waite said: "The remedy is statutory only, and every court which takes jurisdiction for its enforcement is limited in its powers by the statute under which alone it can act."

In Galpin v. Page, 9 Fed.Cas. 1126, 1132, 1133, No. 5,206, Mr. Circuit Justice Field elaborated upon this rule in the following language: "But when the judgment of such a court of general jurisdiction relates to a matter not falling within the general scope of its powers, and the authority of the court over the subject can only be exercised in a prescribed manner, not according to the course of the common law; * * * no such presumption of jurisdiction can arise. The judgment being as to its subject-matter or persons out of its ordinary jurisdiction, authority for its rendition must appear upon the face of its record. In other words, there is no presumption in favor of the judgments of courts of general jurisdiction, except as to matters and persons falling within the scope of that general jurisdiction. When the proceeding is special and outside of that general scope, either as to subjects or persons, the presumption ceases, and the record must show a compliance with the special authority, by which the extraordinary jurisdiction is exercised. This doctrine is an obvious deduction from principle, and is sustained by adjudged cases almost without number in the highest courts of the several states, and in the supreme court of the United States. There is running all through the Reports the emphatic declaration of the common law courts, that a special authority, conferred even upon a court of general jurisdiction, which is exercised in a mode different from the course of the common law, must be strictly pursued, and the record must disclose the jurisdiction of the court."

In the instant case, it is not disputed that the right of action is purely statutory, and that a suit of this nature did not survive at common law. In the language of Mr. Circuit Justice Field, the jurisdiction is "extraordinary," and "not according to the course of the common law." The judgment of the state court, if in excess of the statutory authority, is void, and may be collaterally attacked.

This court has so held. In Murray v. American Surety Co. (C.C.A.) 70 F. 341, 346, the following language was used: "But the judgment of a court having no jurisdiction of the subject-matter or the parties, or the exercise of a power by the court not authorized by the statute in purely statutory proceedings, is utterly null and void, and may be collaterally assailed. Many cases cited."

See, also, Broadmoor Land Co. v. Curr (C.C.A.8) 142 F. 421, 423, 424.

This doctrine has been repeatedly recognized by state courts. In Dailey v. Superior Court, 112 Cal. 94, 97, 44 P. 458, 459, 32 L.R.A. 273, 53 Am.St.Rep. 160, the Supreme Court of the state "annulled" an order of the lower court forbidding the performance of a play, and said: "We are entirely clear that the court had no jurisdiction to make the order which forms the basis of this proceeding, for such order was an attempted infringement upon rights guarantied to every citizen by section 9, art. 1, of the constitution of this state."

The Dailey Case was cited, with apparent approval by the Supreme Court of the United States in Near v. Minnesota, 283 U.S. 697, 719, 51 S.Ct. 625, 75 L.Ed. 1357.

The Court of Appeals of New York has repeatedly held that "a court authorized by statute to entertain jurisdiction in a particular case only, if it undertakes to exercise the power and jurisdiction conferred in a case to which the statute has no application, acquires no jurisdiction, and its judgment is a nullity, and will so be treated when it comes in question, either directly or collaterally." Risley v. Phenix Bank, 83 N.Y. 318, 337, 38 Am. Rep. 421, affirmed Phœnix Bank v. Risley, 111 U.S. 125, 4 S.Ct. 322, 28 L.Ed. 374; O'Donoghue v. Boies, 159 N.Y. 87, 53 N. E. 537, 540, and the many cases there cited; Doey v. Clarence P. Howland Co., 224 N.Y. 30, 120 N.E. 53, 55. See, also, Goldberg v. Levine, 199 App.Div. 292, 192 N.Y.S. 124, 127, 128; Davidson v. Ream, 178 App.Div. 362, 164 N.Y.S. 1037, 1041, 1042; Wright v. Atwood, 33 Idaho, 455, 461, 462, 195 P. 625; 15 C.J. 842; 15 R.C. L. 854.

In 34 C.J. 531, the general...