Muller v. Reagh
| Citation | 343 P.2d 135,173 Cal.App.2d 1 |
| Decision Date | 11 August 1959 |
| Docket Number | No. 18338,18338 |
| Court | California Court of Appeals |
| Parties | William MULLER, Plaintiff and Appellant, v. Charles REAGH, Defendant and Respondent. |
William Muller, Redwood City, in pro. per.
Charles Reagh, San Francisco, for respondent.
We have before us now the third appeal taken by plaintiff in the case of William Muller v. Charles Reagh and Lelah Muller. Lelah Muller was at one time the wife of the plaintiff. As the result of a previous successful appeal herein (Muller v. Reagh, 150 Cal.App.2d 99, 309 P.2d 826), appellant Muller recovered a judgment against the defendants for costs on appeal. In Muller v. Reagh, 170 Cal.App.2d 151, 338 P.2d 601, this court affirmed an order reducing the amount thereof from $262 to $91.50.
On December 7, 1954, the Superior Court of the City and County of San Francisco in the case of Muller v. Muller entered a final decree of divorce in favor of Lelah Muller and against William Muller. Said decree contained an order directing William Muller to pay Charles Reagh, Mrs. Muller's attorney, the sum of $500 as counsel fees.
On July 30, 1957, defendant Reagh filed in the instant action a motion pursuant to section 688.1 of the Code of Civil Procedure, for a lien upon the heretofore mentioned judgment for costs. On October 14, 1957, the motion was argued and appellant's affidavit in opposition thereto was admitted in evidence. Thereafter the court entered its order granting respondent a lien. It is from this order that plaintiff has appealed. The appeal comes before us upon a settled statement and the judgment roll.
The order appealed from reads as follows:
'It appearing that the defendant herein Charles Reagh has obtained a judgment against the plaintiff herein, William Muller, in the sum of $500.00 in action number 417895 in the Superior Court of the State of California, in and for the city and county of San Francisco, his motion for a lien on the judgment herein for costs on appeal obtained by the plaintiff William Muller against the defendant Charles Reagh is hereby granted.'
Respondent contends that an order made pursuant to Code of Civil Procedure, section 688.1, is not appealable. This contention, however, is disposed of by the case of McClearen v. Superior Court, 45 Cal.2d 852, 291 P.2d 449, which holds to the contrary.
Appellant's opening brief sets forth more than 20 pages of 'arguments and propositions.' His 'arguments' are prolix and repetitious; his 'propositions' are obscure and obtuse.
His first contention seems to be that because the divorce decree upon which respondent based his lien was not formally offered and received in evidence at the hearing on the motion, the order is entirely unsupported by the record. According to the record before us, when respondent filed his notice of motion he also filed points and authorities and a certified copy of the final decree entered in the case of Muller v. Muller, San Francisco action No. 417895, which decree ordered appellant herein to pay respondent herein $500 as and for counsel fees. In his notice of motion respondent stated: 'Said motions will be based on all the files and records of this court in this case. * * *' When filed, for purposes of the motion at least, the certified copy of the divorce decree became a part of the records in the case. There is no requirement that a motion be supported by affidavits, as appellant contends, provided it is otherwise supported by the record (see Simonini v. Jay Dee Leather Products Co., 85 Cal.App.2d 265 ), and a court may take judicial notice of the contents of its own records. (18 Cal.Jur.2d § 53, p. 471.)
It is clear from the record before us that the merits of the motion were argued and that the appellant's affidavit in opposition thereto, as well as the divorce decree, in the case of Muller v. Muller, were considered by the court. Under such circumstances we find no merit in appellant's first contention.
Appellant complains because the divorce decree was not formally offered in evidence. He asserts that he was thereby deprived of his right to object thereto. Section 1905 of the Code of Civil Procedure provides that 'A judicial record of this State * * * may be proved by the production of the original, or by a copy thereof certified by the Clerk or other person having the legal custody thereof.' The record before us shows that the copy of the divorce decree was properly certified; it was therefore admissible in evidence. We can hardly be expected to reverse an order merely for the purpose of affording a party an opportunity to make an objection which would only be overruled.
Appellant's major 'proposition' appears to consist of a collateral attack upon the divorce decree which, of course, is the foundation upon which the lien is based. In his affidavit 'In Opposition To Motion For Lien' he alleges that he was never served with summons in the divorce action; that he has never made a general appearance therein; that said decree is void; that he owes respondent no money; that respondent was not a party to the case of Muller v. Muller; that in said action he was never ordered to pay respondent $500 or any other sum and that any such order if existent is void, etc. Appellant apparently contends that since respondent did not file a counter-affidavit denying these allegations, that all of such allegations must be accepted as true, and that same are binding upon the trial court. Fortunately this is not the law.
The rule is well established that a judgment of a court of general jurisdiction is presumed to be valid, i. e., the court is presumed to have jurisdiction of the subject matter and the person, and to have acted within its jurisdiction. The judgment need not recite the jurisdictional facts nor need the party relying upon such judgment plead or prove such facts. The burden is upon the party who attacks the judgment to show lack of jurisdiction. Code Civ.Proc. § 1963, subd. 16; People v. D'A Philippo, 220 Cal. 620, 32 P.2d 962; Johnson v. Canty, 162 Cal. 391, 123 P. 263; McHatton v. Rhodes, 143 Cal. 275, 76 P. 1036; Muller v. Muller, 141 Cal.App.2d 722, 297 P.2d 789; Whitlow v. Superior...
To continue reading
Request your trial
-
Muller v. Muller
...99, 309 P.2d 826; Muller v. Muller, 156 Cal.App.2d 623, 320 P.2d 205; Muller v. Reagh, 170 Cal.App.2d 151, 338 P.2d 601; Muller v. Reagh, 173 Cal.App.2d 1, 343 P.2d 135; Muller v. Muller, 174 Cal.App.2d 517, 345 P.2d 29; Muller v. Robinson, 174 Cal.App.2d 511, 345 P.2d 25; Muller v. Municip......
-
Estate of Muller
...(1962) 204 Cal.App.2d 710, 714, 22 Cal.Rptr. 528; Muller v. Muller (1959) 174 Cal.App.2d 517, 519, 345 P.2d 29; Muller v. Reagh (1959) 173 Cal.App.2d 1, 4, 343 P.2d 135; and Estate of Wilson (1953) 116 Cal.App.2d 523, 527, 253 P.2d Reference to the prior proceedings reveals the following: O......
-
Pangborn v. Carruthers & Skiffington, B144972.
...necessary. (See, e.g., Ahart, Cal. Practice Guide: Enforcing Judgments & Debts (The Rutter Group 1998) ¶ 6:150; Muller v. Reagh (1959) 173 Cal. App.2d 1, 5-6, 343 P.2d 135.) However, its power to impose terms is limited by the fact that it is an abuse of discretion for a trial court to make......
-
Scheel v. Rinard
...court may also permit other written or oral proof. Haldane v. Haldane, 210 Cal.App.2d 587, 26 Cal.Rptr. 670 (1963); Muller v. Reagh, 173 Cal.App.2d 1, 343 P.2d 135 (1959); 34 Cal.Jur. 2d Motions § Appellants' authorities are further distinguishable insofar as, in the instant case, responden......