Opinion
Hearing Granted by Supreme Court May 12, 1927.
Appeal from Superior Court, Sacramento County; Peter J. Shields, Judge.
Application for writ of mandate by Harry J. Gray against Harry W. Hall, County Clerk of Sacramento County and ex officio Clerk of the Superior Court in and for Sacramento County. From a judgment denying the writ, petitioner appeals. Reversed.
COUNSEL
Chas. A. Bliss, of Sacramento, for appellant.
John R. Connelly and Evan J. Hughes, both of Sacramento, for respondent.
OPINION
FINCH, P. J.
This is an appeal from the judgment denying petitioner’s application for a writ of mandate.
In the year 1921 the petitioner commenced an action against P. L. Yarbrough and Elmer H. Gum, sheriff of Placer county, and recovered judgment therein. The judgment was reversed on appeal. Gray v. Yarbrough, 61 Cal.App. 724, 215 P. 914. Thereafter Gray filed his second amended complaint, to which Yarbrough demurred. His demurrer was overruled September 17, 1923, and he was given ten days within which to answer. Respondent’s answer herein admits that Yarbrough, "being then in court and represented by counsel, duly waived notice of such decision and order," and that "respondent, county clerk, did, on *** 29th day of September, 1923, enter the default of said P. L. Yarbrough." April 1, 1924, judgment was rendered in favor of Gray. In so far as material to the questions raised by this appeal, the judgment in that case is as follows:
"In this action the defendants *** were regularly served with plaintiff’s second amended complaint herein, and defendant P. L. Yarbrough having filed a demurrer thereto, which demurrer was by the court overruled, and said defendant P. L. Yarbrough having failed to answer plaintiff’s said second amended complaint within the time allowed therefor, and the defendant Elmer H. Gum, as sheriff of Placer county, Cal., having failed to answer or demur to said second amended complaint, and the legal time for answering having expired, the defaults of said defendants P. L. Yarbrough and Elmer H. Gum, as sheriff of Placer county, Cal., were duly entered according to law.
"Now, on this day, on application of Chas. A. Bliss, Esq., attorney for said plaintiff, and upon legal evidence presented in support of said second amended complaint, the court finds that all of the allegations of plaintiff’s second amended complaint are supported by legal evidence and are true; and it is hereby ordered that judgment be entered herein against the said defendant P. L. Yarbrough *** in accordance with the prayer of said plaintiff’s second amended complaint on file herein:
"Wherefore, by reason of the law and the premises aforesaid it is ordered, adjudged, and decreed *** that the judgment which defendant Yarbrough obtained against *** F. W. Herbert *** for the sum of *** $1,573.37 in the superior court of Placer county, Cal., on the 2d day of May, 1921, as described in plaintiff’s second amended complaint, was obtained by defendant Yarbrough as trustee for, and for the benefit of, plaintiff, and said judgment has inured to the benefit of and now belongs to said plaintiff, and that said P. L. Yarbrough never had any interest therein of right thereto; that defendant P. L. Yarbrough be and he is hereby required to make and execute the necessary transfers and assignments to convey and transfer said judgment to plaintiff, and in the event of the neglect or failure of said P. L. Yarbrough to assign and transfer said judgment to plaintiff, the clerk of this court be, and he is hereby, directed to make the necessary transfer and assignment thereof to this plaintiff."
The judgment "has never been appealed from, vacated, or set aside." December 12, 1924, Gray served upon Yarbrough a notice and demand to transfer the judgment against Herbert, as provided in the foregoing judgment in the case of Gray v. Yarbrough, but Yarbrough refused to make the transfer. Due proof of such demand and refusal was filed with the respondent herein, and demand was made upon him to make the transfer as directed by the judgment. Respondent refused to make the transfer and this suit followed.
In respondent’s brief it is said:
"The only point of law involved in this appeal is whether or not the judgment entitled Harry J. Gray, Plaintiff, v. P. L. Yarbrough and Elmer H. Gum, *** Defendants, *** is void upon its face. In order to determine the validity of a judgment the courts are limited to an examination of the judgment roll alone."
As applied to the judgment under consideration, the attack being collateral and by one not a party to the action in which the judgment was rendered, respondent’s statement is strictly correct. Crouch v. H. L. Miller & Co., 169 Cal. 341, 343, 146 P. 880; People v. Davis, 143 Cal. 673, 675, 77 P. 651; Canadian, etc., Co. v. Clarita, etc., Co., 140 Cal. 672, 674, 74 P. 301; Whitney v. Daggett, 108 Cal. 232, 235, 41 P. 471. It has been said, however, that:
"If the parties admit the facts which show that the judgment is void, or if they are established without opposition, then, as a question of law upon such facts, we do not see why the case is not like that where the judgment is void upon its face." Akley v. Bassett, 189 Cal. 625, 639, 209 P. 576, 581.
Over petitioner’s objection that "it is irrelevant, immaterial, and incompetent and is not a part of the judgment roll, and for the further reason that the order is void under rule 26 of this court," the court admitted in evidence an order which, after the entitlement of the court and cause in the case of Gray v. Yarbrough reads as follows:
"Upon good cause showing, it is hereby ordered that the defendant in the above-entitled action have to and including the 29th day of September, 1923, in which to file his answer in the above-entitled action.
"Dated this 27th day of September, 1923.
"Peter J. Shields,
"Judge of the Superior Court."
Rule 26 provides that:
"Every order obtained ex parte *** must *** be served by copy on the attorney of the adverse party within one day after it has been obtained, or it may be treated as void."
This order was not served upon the plaintiff in that action but it was filed September 27, 1923. Over petitioner’s objection the court also admitted in evidence Yarbrough’s answer to the second amended complaint in that action filed September 29, 1923, but after the entry of defendants’ default therein.
The order extending Yarbrough’s time to answer is not a part of the judgment roll. Code Civ. Proc. § 670. For that reason it was error to admit it in evidence. Respondent contends that it may be treated as an amendment of the order overruling the demurrer and as such a part of the judgment roll. Such an order is not subject to amendment on an ex parte application. Neither does the order extending the time in which to answer purport to amend the order overruling the demurrer. The filing of the answer after the entry of the default was ineffective for any purpose. Irvine v. Davy, 88 Cal. 495, 497, 26 P. 506; Christerson v. French, 180 Cal. 523, 525, 182 P. 27. The judgment recites that the default of the defendant was "duly entered according to law." This recital is conclusive on collateral attack. Catanich v. Hayes, 52 Cal. 338, 339; Sacramento Bank v. Montgomery, 146 Cal. 745, 751, 81 P. 138; Crouch v. H. L. Miller & Co., 169 Cal. 341, 345, 146 P. 880; Sheehan v. All Persons (Cal.App.) 252 P. 337, 339.
Respondent contends that the clerk was without authority to enter the default because Yarbrough’s answer to the original complaint was on file; that, after the first judgment was reversed, the "plaintiff filed an amended complaint *** practically identical with his original complaint *** except for the addition of certain allegations to avoid the statute of limitations"; that such answer "is a complete answer to all the allegations of the amended complaint with the exception of the allegations in reference to the time of the discovery of the alleged fraud, an admission of which, all other material facts being denied, did not entitle plaintiff to judgment." Respondent offered the original complaint in evidence, but petitioner’s objection thereto was sustained. The contents of that complaint therefore cannot be considered. Even if the pleadings in Gray v. Yarbrough, which were not admitted in evidence, but are set forth in the transcript, might be considered, they would not help the respondent. After the second amended complaint was served and filed Yarbrough demurred thereto on general and many special grounds, and, after his default was entered, he filed an answer to that complaint. It appears therefore that he did not rely upon his answer to the original complaint as an answer to the second amended complaint, and neither party treated it as such. The second amended complaint superseded the original complaint, and, after the filing of the former, neither the latter nor the answer thereto served any purpose as a pleading. Schlake v. MacConnell, 69 Cal.App. 207, 209, 230 P. 974; Morris v. Hartley, 26 Cal.App. 61, 69, 146 P. 73. The case of Lincoln County Bank v. Fetterman, 170 Cal. 357, 149 P. 811, relied on by respondent, is not in point. That case involved a slight trial amendment which "raised no new issue and presented no new proposition which the defendant was called upon to meet." The court said:
"The original answer was not only not eliminated by virtue of the amendment to the complaint, but was the answer joining the issues upon which the action was tried. It was an essential part of the judgment roll."
The contention in that case was that the defendant was entitled to a continuance on the ground that he was not then prepared to plead and meet the new issue raised by the amendment. Redington v. Cornwell, 90 Cal. 49, 27 P. 40, cited by respondent, merely holds that, after the filing of an amended complaint, the original complaint may be considered as a part of the record for the purpose of showing when the action was commenced and whether a new or different cause of action was introduced by the amended complaint.
The judgment is reversed.
We concur: HART, J.; PLUMMER, J.