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Second Edition
by B. E. WITKIN of the San Francisco Bar

Volume 1
BANCROFT-WHITNEY 00. 301 Brannan Street San Francisco, California 94107 BW 1970 (b) Validity of Judgment by Disqualified Judge. (1) [60] Theory That Judgment Is Void. The rule is commonly declared in California decisions that a judgment or order rendered by a disqualified judge is void (See Lindsay-Strathmore Irr. Dist. v. Superior Court (1920) 182 C. 315, 331. 187 P. 1056 [interest in subject matter] ; Cadenasso v. Bank of Italy (1932) 214 C. 562, 569, 6 P.2d 944 [ownership of stock] ; Giometti r Etienne (1934) 219 C. 687, 689, 28 P.2d 913 [relationship to counsel], Vallejo v. Superior Court (1926) 199 C. 408, 418, 249 P. 1084 [interest as stockholder] ; Hall v. Superior Court (1926) 198 C. 373, 387, 245 P. 814 [interest as property owner in irrigation district] ; Keating v. Keating (1915) 169 C. 754, 760, 147 P. 974 [bias and prejudice]; Meyer v. San Diego (1898) 121 C. 113, 53 P_ 11-28 [interest as property owner and taxpayer in litigation involving city]; Tatum v. Southern Pac. Co. (1967) 250 C.A.2d 40, 43, 58 C.R. 238, infra, 67 [trustee of stock]; Noorthoek v. Superior Court (1969) 20 C.A.2d 600, 607. 75 C.R. 61; 124 A.L.R. 1082.) The theory upon which this rule rests has not been clearly stated in these decisions, and the proposition itself is not uniformly accepted in its broadest form by all of them. The opinion in Giometti V. Etienne, supra, states that "this court has on several occasions pointed out that a judgment rendered by a disqualified judge is void." (219 C. 689.) Tatum v. Southern Pac. Co.. supra. is even more positive: T)he statute does not say that the judge is disqualified to decide erroneously but that he shah not decide at all.." Some of the cases are more cautious in their declarations of invalidity. In Lindsay-Strathmore Irr. Dist v. Superior Court, supra, after trial and decision, the Supreme Court granted prohibition to p. 338 JURISDICTION 124

defendant's' personal appearance. Thereafter findings, conclusions and a judgment were signed and entered. Held, prohibition issued to prevent further proceedings to enforce the bench warrant. Assuming the authority of the court to make the order to show cause before entry of judgment, a person ordered to show cause may appear by attorney despite an express direction that he appear in person. The opinion states the governing principle in the broadest possible terms: "This contention presents the question whether a trial court in civil litigation has inherent power to order the physical presence of a party before it, other than as a witness, at any stage or stages of the litigation. We are of the opinion that the court has no such power." (157 C.A.2d 291.) 2. Nature, Purpose and Effect of Special Appearance. (a) [124] In General. (1) Purpose. If a court has no jurisdiction of a person he may ignore the proceedings, and will not ' be adversely affected by the void judgment against him. (Los Angeles v. Morgan (1951) 105 C.A.2d 726, 731, 234 P.2d 319.) But if, as is usually the case, there are questions of fact and law involved in the determination of jurisdiction, it may be unsafe to allow the matter to be determined without opposition. And even a void judgment may cause trouble and inconvenience while it remains on the record, undisturbed. From a practical standpoint, therefore, it is necessary that a party who denies the jurisdiction of the court over his person be afforded an opportunity to raise the objection and still not make a general appearance. This s the chief reason for allowing a special appearance, which is a method of appearing for the sole purpose of objecting to lack of jurisdiction of the person, without submitting to such jurisdiction. (See Davenport v. Superior Court (1920) 183 C. 506, 191 P. 911; Rest., Judgments 20; Rest., Conflict of Laws 2d (Prop. Off. Draft) 81; 5 Cal Practice 28; C.E.B., Civ. Proc. Before Trial, p. 514; 10 Stanf. L. Rev. 711; 73 Harv. L. Rev. 091; 5 Am.Jur.2d 479; 2 Am.Jur. P.P. Forms (Rev. Ed.) 359; infra, 132 et seq.) The Federal Rules have eliminated the necessity for formal special appearances; whether the pleading or motion is a submission to jurisdiction depends upon the substance of the objection. (Fed. Rule 12; see 5 Federal Practice and Procedure (Wright) 521.) (2) Requisites. No particular form is required; it is simply necessary to make it clear that the defendant objects to jurisdiction p. 653 125 JURISDICTION

over his person and asks for no other relief, However, the objection of lack of jurisdiction of the person is often raised by a formal Motion to quash summons, and it is customary, in the notice of motion, to use the beading "special appearance," 'or to state at the outset: the moving party, "appearing specially for the sole purpose," etc. (Se Davenport v. Superior Court, supra [motion to quash and set aside service of summons]; Varra v. Superior Court (1960) 181 C.A.2d I 14, 4 C.R. 920, citing the text [motion to reconsider denial of a motion to quash summons] ; Hernandez v. Nat. Dairy Products (1955) 12 C.A.2d 490, 492, 494, 272 P.2d 799* [preferable to

use motion to quash but motion to dismiss not necessarily a submission to jurisdiction ]:Parker v. Superior Court (1926) 79 C.A. 618, 620, 250 P. 587 [defendant husband appeared specially - at hearing of order to show cause and objected to jurisdiction of court to punish him for contempt]; Fidelity Bank v. Kettler (1968) 264 C.A.2d 481, 486, 70 C.R. 500, citing The text; infra, 132 et seq.) In Hernandez v. Nat. Dairy Products, supra, defendant company filed a special appearance and notice of motion to quash service and dismiss the action on the ground that it was not doing business in California. This was a proper challenge to jurisdiction of the person. But counsel's affidavit also stated that the court lacked jurisdiction because the cause of action (for personal injuries sustained in Maryland) did not arise in California. Held, nevertheless, the appearance was special. The erroneous affidavit and argument attacking subject matter jurisdiction of a transitory tort did not alter the fundamental 'nature of the motion nor extend its grounds. (See also Holtkamp v. States Marine Corp. (1958) 165 C.A.2d 131, 136, 331 P.2d 679 [following Hernandez ease].) Josephson v. Superior Court (1963) 219 C.A.2d 354, 362, 33 C.R. 196, follows the Hernandez holding that matters in the affidavits or argument do not expand the grounds of the motion. The court also declared that payment of an appearance fee was of no significance since the clerk had demanded it as a condition of filing the motion. (219 C.A.2d 363, footnote.) (b) [125] Designation as Special Appearance Not Controlling. The designation of the paper or the proceeding as a special appearance (supra, 124) is -9 useful and desirable procedure, but it is not Conclusive ill its effect. If the moving party does not confine himself to the objection of lack of jurisdiction of the person, but seeks relief on the merits, his application may be deemed a general appearance regardless of its designation. As the court said in Security Loan & T. Co. v. Boston & S. Riverside Fruit Co. (1899) 126 C. 418, 422, 58 P. 941: "[W]here the defendant appears and asks some relief which can only be granted on the hypothesis that the court has jurisdiction of the cause and person, it is a submission to the jurisdiction of the court as completely as if he had been regularly served with process, whether such an appearance by its terms be limited to a special appearance or not." A fuller exposition appears in the case of In re Clarke (1889) 125 C. 388, 392, 58 P. 22: "On general principles, a statement that a defendant or party makes a special appearance is of no consequence whatever, If he appears and objects only to the consideration of the case. or to any procedure in it, because the court has not acquired jurisdiction of the person of the defendant, the appearance is special, and no statement to that effect in the notice or motion is required or could nave any effect if made. On the other hand, if he appears and asks for any relief which could only be given to a party in a pending case. or which itself would be a regular proceeding in the case, it is a general appearance no matter how carefully or expressly it may be stated that the appearance is special. It is the character of the relief asked, and not the intention of the party that it shall or shall not constitute a general appearance, which is material." (See also Milstein v. Ogden (1948) 84 C.A.2d 229, 232, 190 P.2d 312; 5 Am.Jur.2d 490, 508; Rest., Conflict of Laws 2d (Prop. Off. Draft) 81, Comment c.)

This rule, formerly applied with great strictness in California, has been relaxed in several situations to avoid hardship and procedural inconvenience. (See infra, 135, 136.) 3. Illustrations Acts Constituting General Appearance. (a) [126] Notice of Appearance. C.C.P. 1014 provides: "A defendant appears in an action when he . . . gives the plaintiff written notice of his appearance, or when an attorney gives notice of appearance for him." Formal notice of appearance or general appearance is occasionally given by filing a written document to that effect. (See Farmers etc. Nat. Bank v. Superior Court (1945) 25 C.2d 842, 846, 155 P,2d 823 [proceeding in rem; general appearance and waiver of notice, filed by Alien Property Custodian on behalf of nonresident heirs] ; Marvin v. Marvin (1941) p. 655 46 C.A.2d 551, 553, 116 P.2d 151 [divorce action; defendant, by her attorneys, filed instrument: "Comes now the defendant" and enters appearance and declines to answer complaint] ; Harrington v. Superior Court (1924) 194 C. 185, 187, 228 P. 15 [action in rem; defendant signed an "appearance"] ; Cooper v. Gordon (1899) 125 C. 296, 299, 57 P. 1006 [stipulation that plaintiff could enter judgment at any time for a certain amount] Foote v. Richmond (1871) 42 C. 439, 443 [consent to entry of decree] 5 Cal Practice 13; Leflar p. 49; 10 Stanf. L. Rev. 712; 5 Am.Jur.2d 490; 25 A.L.R.2d 833; 2 Am. Jur. P.P. Forms (Rev. Ed. 367; C.E.B., Civ. Proc. Forms, p. 131; and see also Family Law Rule 1236.) (b) [127] Pleading: Answer or Demurrer. C.C.P. 101.4 provides that a defendant appears when he "answers" or "demurs." This is the typical method of appearing; filing an answer or demurrer which seeks some relief or raises some objection other than that of lack of jurisdiction of the person Thus, an answer on the merits is clearly a general appearance. (Remsberg v. Hakney Mfg. Co. (1917) 174 C. 799, 801, 164 P. 792; Leaper v. Gandy (1937) 22 C.A.2d 475, 477, 71 P.2d 303; Harrington v. Evans (1950) 99 C.A.2d 269, 270, 221 P.2d 696; Rest., Judgments 19, Comment b; see 5 Arn. Jur.2d 491; see also Family Law Rule 1236 [response as appearance].) Formerly the defendant who coupled an objection to lack of jurisdiction of the person with some other challenge (e.g., to subject matter jurisdiction or to joinder of parties or causes) lost his objection to jurisdiction: The attempt to obtain other relief was a submission to jurisdiction. (See Olcese v. Justice's Court (1909) 156 C. 82, 87, 103 P. 317; Molfino v. Pippo (1932) 122 C.A. 437, 439, 10 P.2d 78: Gulick v. Justice's Court (1929) 101 C.A. 619, 281 P. 1031; see also Raps v. Raps (1942) 20 C.2d 382, 384, 125 P.2d 836, supra, 122 [same rule applies to oral appearance on motion] ; Smith v. Smith (1953) 102 C.A.2d 474, 482, 261 P.2d 567; 30 Cal. L. Rev. 690; 25 A.L.R.2d 833.) New legislation makes it, possible to avoid this result (See infra, 133 et seq.) (c) [128] Motions.

If a motion seeks some relief or the merits or necessarily implies that the court has jurisdiction of the person it will, like a demurrer be considered a general appearance. The following are of such effect: (1) A motion to strike out a pleading or other paper, or to dismiss the proceeding on some ground other than that of lack of jurisdiction of the person. (See Roberts v. Superior Court (1916) 30 C.A. 714, 720, 159 P. 465; cf. Wilson v. Barry (1951) 102 C.A.2d 778, 781, 228 P.2d 331 (motion for summary judgment, supporting affidavit filed by defendant personally]; Rest., Judgments 19, Comment b; 5 Am.Jur.2d 495; Batchelor v. Finn (1959) 169 C.A.2d 410, 426, 337 P.2d 545, citing the text.) C.C.P. 1014 accordingly states that a defendant appears when he answers, demurs, or "files a notice of motion to strike." (See also Family Law Rule 1236 [notice of motion to strike, notice of motion to quash proceeding under Rule 1230, notice of motion to transfer proceeding under Rule 12351.) (2) An application for a continuance of an action or a hearing. As the court pointed out in Zobel v. Zobel (1907) 151 C. 98, 101, 90 P. 191: "It is difficult to perceive how the application of the defendant for a continuance of the hearing could operate other than as a personal appearance in the case. He was invoking the action of the court in his behalf, and that his application was unsuccessful was immaterial as far as his voluntary appearance therein was concerned. He could not consistently apply for the relief asked on any other theory than that he was submitting himself to the general jurisdiction of the court in the action." (See also Pfeiffer v. Ash (1949) 92 C.A.2d 102, 206 P.2d 438 [stipulation requesting continuance].) (3) A motion to disqualify a judge. (See Donovan v. Superior Court (1952) 39 C.2d 848, 851, 250 P.2d 246 [pointing out that C.C.P. 170 allows party "who has appeared" to raise the objection] ; Noorthoek v. Superior Court (1969) 269 C.A.2d 600, 607, 608, 75 C.R. 61, citing the text.) (4) A motion for change of venue pursuant to C.C.P. 396b. (C.C.P. 1014; see Actions, 525.) However, the decisions holding that an objection to lack of jurisdiction is futile when accompanied by some other challenge (see, e.g., Crabtree v. Superior Court (1961) 197 C.A.2d 821, 828, 1 C.R. 763) are no longer. law. (See infra, 135.) (d) [129] Participation in Trial or Hearing. If the defendant, either personally or by attorney, is physically present at the trial and participates therein, this will amount to a general appearance. (Hart v. Carnall-Hopkins Co. (1894) 103 C. 132, 140, 37 P. 196 [defendant appealed from judgment of justice court and went through a trial de novo in superior court] ; Estate of Strong (1942), 54 C.A.2d 604, 610, 129 P.2d 493; Maple v. Walser (1933) 131 p. 657 JURISDICTION


A. Jurisdiction To Decide Jurisdictional Issue Initially. 1. [230] In General. It is sometimes said that a tribunal "has jurisdiction to determine its own jurisdiction." The meaning of this doctrine, like that of others in this field, varies in accordance with the different meanings of the term "jurisdiction" (see supra, 1). It may mean jurisdiction of the court to determine that it has jurisdiction of the. subject matter or of the parties, or that it has jurisdiction to act in a particular manner, And it may mean jurisdiction to determine jurisdiction initially, subject to review by a higher court, or jurisdiction to determine jurisdiction finally, under the principle of res judicata. -(As to the related topic of jurisdiction to determine nonjurisdiction, see infra, 247, 248.) The most obvious aspect of the doctrine is that a tribunal has the duty, and therefore the authority or power (jurisdiction), to decide in the first instance whether it has jurisdiction of the subject matter and the parties, and whether it also has jurisdiction to act in a particular manner. This process may involve the determination of jurisdictional facts, or of jurisdictional questions of law. In either case the lower tribunal should be permitted to reach its decision without interference by a higher court, for two reasons: First, because it is acting within its jurisdiction in attempting to determine the issue-the primary issue which a court must face. Second, until it makes the determination and proceeds to act upon it no one can be aggrieved, for the court may, and usually does, decide the issue correctly. As the court said in Abelleira v. Dist. Ct. of Appeal (1941) 17 C.2d 280, 3021 109 P.2d 942: "The proposition, stated simply, is that a tribunal has jurisdiction to determine its own jurisdiction. This is a truism, and, subject to certain implicit limitations, is ordinarily a correct statement of law. It has its origin mainly in the cases holding that a court has inherent power to inquire into jurisdiction of its own motion, regardless of whether the question is raised by the litigants. . . . It rests also upon the theory that until the court determines that it has jurisdiction and does some act in consequence, there can be no injury to the party who denies its jurisdiction. . . . It means only that the trial court or lower tribunal or body to which the question is submitted has such jurisdiction to make the first pre p. 767 231 JURISDICTION liminary determination-not a final one; and no interference is permitted until it does decide the matter one way or the other. Until it acts to assume or refuse jurisdiction over the merits no one is entitled to complain." (See also Rescue Army v. Municipal Court (1946) 28 C.2d 460, 464, 171 P.2d 8.)

In consonance with this legal doctrine, a rule of practice has developed: The party who challenges the jurisdiction of a lower tribunal must do so first in that tribunal, by demurrer, motion, plea or similar form of objection, so that the lower tribunal may be fully-advised and have the opportunity to consider and preliminarily determine the question of its jurisdiction to proceed. (Rescue Army v. Municipal Court, supra; Western Surgical Supply Co. v. Affleck (1952) 110 C.A.2d. 388, 393, 242 P.2d 929; Shaffer v. Justice Court (1960) 185 C.A.2d 405, 8 C.R. 269; see Extraordinary Writs, 111.) In Mendoza v. Small Claims Court (1958) 49 C.2d 668, 670, 321 P.2d 9, Courts, 191, the doctrine was applied to justify defendant court's dismissal of a proceeding on its own motion where the statute granting jurisdiction was unconstitutional; ie., the court, in determining whether it had jurisdiction, could inquire into the constitutionality of the statute, and appeal from a judgment compelling it to proceed. In Scott v. Ind. Acc. Com. (1956) 46 C.2d 76, 293 P.2d 18, infra, 299, it was held that the doctrine of priority of the first court to assume jurisdiction applies to jurisdiction to determine jurisdiction. In other words, where two tribunals have concurrent jurisdiction to determine which has jurisdiction, the first in which a proceeding is filed must be allowed to determine the issue, and the second will be prohibited from proceeding further. 2. C1231] Distinction: Jurisdiction To Proceed. When the issue of its jurisdiction-whether raised by the parties or by its own motion--has been decided by a court which then commences to hear the case, the doctrine just described (supra, 230) has no further application The jurisdiction to determine jurisdiction has been fully exercised and exhausted by the determination in favor of jurisdiction. The question then becomes one of jurisdiction to proceed in the case, and the appropriate remedies for lack of or excess of jurisdiction may then be invoked. Abelleira v. Dist. Ct. of Appeal (1941) 17 C.2d 280, 302, log P.2d 942, supra, 230, was the first California case to examine this concept p. 768 232 JURISDICTION critically. A court of appeal, on petition of certain employers, issued an alternative writ of mandamus to prevent the California Employment Commission from paying awards of unemployment compensation. The Commission contended that the court had no jurisdiction to decide the merits (because the employers had failed to exhaust their administrative remedies; see supra, 64). The petitioning employers argued that the court did, nevertheless, have jurisdiction to issue the alternative writ for the purpose of considering and determining the question whether it had jurisdiction of the merits. Held, prohibition should issue to prevent the court of appeal from enforcing its writ of mandamus.

(1) If that court had merely taken under consideration the question whether it had jurisdiction to issue the writ, there would be no reason to interfere pending its decision. But by issuing the alternative writ of mandamus, the court acted, affirmatively assuming a jurisdiction over the merits and displacing that of the Commission. (2) When such a step is taken, the doctrine of jurisdiction to determine jurisdiction no longer has any relevancy. "The jurisdiction to determine jurisdiction has been fully exercised by a determination in favor of jurisdiction over the cause; the question is no longer of jurisdiction to determine, but of jurisdiction to act. And jurisdiction to act is always a subject of inquiry by a higher court." (17 C.2d 303.) This distinction was again emphasized in Rescue Army v. Municipal Court (1946) 28 C.2d 460, 464, 171 P.2d 8: "When, however, the trial court has heard and determined the jurisdictional challenge, and has decided in favor of its own jurisdiction, and then proceeds to act, that is, to try the cause on its merits, the situation is entirely different. It then may be properly claimed that a court without jurisdiction is purporting to exercise it. At this stage, jurisdiction to determine jurisdiction has been exercised, and the higher courts will, in an appropriate case, restrain the lower court from acting in excess of jurisdiction . . . . " (See also Housing Authority v. Superior Court (1950) 35 C.2d 550, 557, 219 P.2d 457; Rich v. Superior Court (1916) 31 C.A. 689, 694, 161 P. 291 (certiorari]; Arroyo D. & W. Co. v. Superior Court (1891) 92 C. 47, 52, 28 P. 54.) 3. Can Initial Determination Be Temporarily Binding? (a) [232] General Principles. Bearing in mind the distinction between jurisdiction to determine jurisdiction and jurisdiction to act (supra, 231) it is clear that the 232 JURISDICTION

initial determination has no conclusive effect when properly called into question in a proceeding to review it. A court cannot lift itself by its own bootstraps, i.e., it cannot acquire jurisdiction by a declaration that it has jurisdiction. But is there nevertheless some temporary period during which a court may, after its initial determination, validly-proceed to exercise such asserted jurisdiction, pending further deliberation by itself or review in a higher court? There are several decisions which appear to support this view. In Rausch v. Superior Court (1940) 40 C.A.2d 707, 105 P.2d 627, a damage suit for more than the jurisdictional maximum was tried in the municipal court and then transferred to the superior court. In the superior court, defendant moved to retransfer to the municipal court on the ground that plaintiff, by proposed instructions, had remitted any claim for the excess, and the municipal court therefore had jurisdiction. The motion was denied and defendant sought a writ of prohibition to prevent the superior court from retaining the cause for trial. Held, the writ should not issue, "for the reason that the superior court has jurisdiction to determine whether the case pending before it is one within the cognizance of the municipal or superior courts and its determination of such question, whether right or wrong, is not without nor in excess of its

jurisdiction. Hence, if the superior court's ruling is erroneous, it involves merely an error to be corrected upon appeal." (40 C.A.2d 707.) In Pasadena v. Superior Court (1928) 92 C.A. 523, 268 P. 664, plaintiff city brought a condemnation action. Defendant then obtained an injunction against prosecution of the action on the ground that the ordinance and other preliminary proceedings were void. The trial court nevertheless set the condemnation action for trial, and plaintiff city sought prohibition to prevent it. Held, the writ should be denied. The respondent court "has jurisdiction in the first instance to pass upon that very question. If it determines the matter erroneously the injured party has his remedy by an appeal, which has been uniformly held is an available and adequate remedy. . . . Undoubtedly if the respondent court determines that the judgment rendered is a bar to the pending case it will enter the proper judgment, but until it shall have rendered some judgment we are not free to interfere." (92 C.A. 525.) The result reached in each of the foregoing cases might perhaps have been justified on (1) the theory that the jurisdictional issue called for a determination of fact on conflicting evidence; or (2) the theory p. 770 233 JURISDICTION that prohibition was unavailable because appeal was an adequate remedy. The language of the opinions suggests, however, that even where the jurisdictional determination is clearly erroneous the court nevertheless has jurisdiction to proceed until final judgment. This view is entirely unsound and was rejected by the Supreme Court in Abelleira v. Dist. Ct. of Appeal (1941) 17 C.2d 280, 304, 109 P.2d 942, supra, 231.In the Abelleira case it was contended that the court of appeal had some kind of temporary jurisdiction to stop the administrative proceeding and that there could be no interference until its final decision. The Supreme Court first stated the contention as follows: "[T]he proposition is that a court may temporarily interrupt any pending proceeding, administrative or judicial, and hold that proceeding in abeyance while it decides whether it had any power to interfere in the first place; and during all this time it is immune from any restraint by a higher court. If that is true as applied to this case, then there is no control over unauthorized, arbitrary assumptions of judicial power except the slow process of appeal or petition for hearing." (17 C.2d 302.) The court then, after examining this "destructive doctrine," concluded: "To say that the District Court of Appeal, left alone, may ultimately reach the same conclusion as we do here, and therefore should not be restrained, is no longer an answer. The writ of prohibition is not refused nor held in abeyance because the lower tribunal may ultimately realize the error of its assumption of jurisdiction; it is granted at the time the act in excess of jurisdiction occurs." (17 C.2d 304.) (See also Rescue Army v. Municipal Court (1946) 28 C.2d 460, 464, 171 P.2d 8 [explaining misconceptions arising from In re Bell (1942) 19 C.2d 488, 492, 122 P.2d 22, and Portnoy v. Superior Court (1942) 20 C.2d 375, 378, 125 P.2d 4871 ; Arroyo D. & W. Co. v. Superior Court (1891) 92 C. 47, 52, 28 P. 54; Kilburn v. Law (1896) 111 C. 237, 242, 43 P. 615.) (b) Temporary Restraining Order or Injunction.

(1) [233] United States Supreme Court View. In United States v. United Mine Workers (1947) 330 U.S. 258, 67 S.Ct. 677, 91 L.Ed. 884, a federal district court issued an ex parte restraining order. Defendants, contending that under the Norris La Guardia Act the court had no jurisdiction to make the order (excess of jurisdiction), disobeyed it. Their convictions for criminal contempt were affirmed, one ground being that the statute did not deprive the district court of such jurisdiction. But as an alternative ground the 233 JURISDICTION majority relied on what has been called the "void but nonfrivolous doctrine": During the time when the court is considering the issue of its jurisdiction, in cases where the claim of jurisdiction is not frivolous or wholly unsubstantial, violation of an order is punishable as a contempt, though it may later be determined that the court had no jurisdiction to make the order. "We insist upon the same duty of obedience where, as here, the subject matter of the suit, as well as the parties, was properly before the court; where the elements of federal jurisdiction were clearly shown; and where the authority of - the court of first instance to issue an order ancillary to the main suit depended upon a statute, the scope and applicability of which were subject to substantial doubt." After the district court's determination in favor of its jurisdiction to issue the injunction its orders "were to be obeyed until they expired or were set aside by appropriate proceedings, appellate or otherwise." (67 S.Ct. 696, 91 L.Ed. 913.) This view was denounced in the dissent: "I cannot believe that the historic powers of our courts . . . or the rights of citizens, confirmed as these have been for so long by an unbroken line of decisions, have been or can be overthrown and subverted, merely by the fact that the question of the court's power to issue the order violated may be doubtful and not merely frivolous. . . ." (67 S.Ct. 726, 91 L.Ed. 945.) (See also 60 Harv. L. Rev. 811, noting the weak background of authority supporting the doctrine and discussing the policies for and against it; 72 Harv. L. Rev. 1569; 76 Harv. L. Rev. 106.) In Walker v. Birmingham (1967) 388 U.S. 307, 87 S.Ct. 18241 is L.Ed.2d 1210, Birmingham officials, on an ex parte application, obtained a preliminary injunction against 139 individuals and two organizations, on allegations of sit-in demonstrations, mass parades, trespasses on private property, and unlawful picketing, in violation of local ordinances and state statutes. Petitioners, served with copies of the writ, publicly announced their intention to violate it, and did so by parading without a required permit. An order to show cause issued for contempt, and petitioners sought to challenge the validity of the injunction as too broad and a restraint on free speech. The trial judge refused to consider this challenge because there had been - no motion to dissolve the injunction or any attempt to comply by seeking a permit; then he found petitioners in contempt. Held, affirmed. The court that issued the injunction had jurisdiction over the subject matter and petitioners; the injunction was not transparently invalid; and, although constitutional issues could undoubtedly be raised, e.g., breadth and vagueness of the p. 772

injunction, or arbitrary administration of the parade ordinance, these attacks should have been made in the Alabama courts by motion to dissolve: "The rule of law that Alabama followed in this case reflects a belief that in the fair administration of justice no man can be judge in his own case, however exalted his station, however righteous his motives, and irrespective of his race, color, politics, or religion. This Court cannot hold that the petitioners were constitutionally free to ignore all the procedures of the law and carry their battle to the streets." (87 S.Ct. 1832,18 L.Ed.2d 1219.) Four justices dissented, making these points: (1) Petitioners were properly challenging the constitutionality of a statute by violating it and then defending on constitutional grounds; this is one way to establish standing. (87 S.Ct. 1835, 18 L.Ed.2d 1223.) (2) No authority supports the court's holding that a party subject to a temporary injunction must normally challenge it by motion rather than by violation. And the United Mine Workers case is distinguishable: There was an underlying dispute and the injunction was issued to preserve existing conditions while it was being resolved. Here the injunction was issued with no such dispute (the ordinance already imposed penalties); the purpose of the injunction was to permit this prosecution for contempt, by immunizing the statute from constitutional attack except by a slower process. (87 S.Ct. 1838, 18 L.Ed.2d 1226.) (3) The United Mine Workers rule "plainly was not intended to give a State the power to nullify the United States Constitution by the simple process of incorporating its unconstitutional criminal statutes into judicial decrees." (87 S.Ct. 1839, 18 L.Ed.2d 1227.) And an ordinance which is unconstitutional on its face, or patently unconstitutional as applied, "is not made sacred by an unconstitutional injunction that enforces it. It can and should be flouted in the manner of the ordinance itself." (87 S.Ct. 1841, 18 L.Ed.2d 1230.) (4) The majority opinion lets loose a destructive weapon for infringement of freedoms, permitting state courts to punish for contempt what they could otherwise not punish at all: "Constitutional restrictions against abridgements of First Amendment freedoms limit judicial equally with legislative and executive power. Convictions for contempt of court orders which invalidly abridge First Amendment freedoms must be condemned equally with convictions for violation of statutes which do the same thing." (87 S.Ct. 1847, 18 L.Ed.2d 1236.) (See 56 Cal. L. Rev. 517; 81 Harv. L. Rev. 141; 1967 A.S. 145, 528.) p. 773 (2) [234] California Rule. Whatever be the extent to which the federal courts may apply the United Mine Workers doctrine (supra, 233), it is not the law in California. Given an extreme application, it would mean that any court (including an inferior court) has a reasonable time in which to act in excess of its jurisdiction (even though this may involve violation of a statute or the Constitution, or

enforcement of an unconstitutional statute); and that its void order must be obeyed because it made the order in a case involving a substantial controversy. The contrary view, long settled in California, is that a void order is never binding, and that its violation cannot constitute contempt. A party affected by an order may, and usually will, seek some orderly judicial means of setting it aside; but he may also ignore or disobey it at his peril. If he guesses wrong, he may be punished; if he guesses right, the final judicial determination that the order was without or in excess of jurisdiction is necessarily a determination that he committed no punishable wrong in violating it. (See Kreling v. Superior Court (1941) 18 C.2d 884, 118 P.2d 470; Harlan v. Superior Court (1949) 94 C.A.2d 902, 905, 211 P.2d 942; In re Carroll (1933) 135 C.A. 672, 677, 28 P.2d 84; Chaplin r. Superior Court (1927) 81 C.A. 367, 378, 253 P. 954; In re Wren (1957) 48 C.2d 159, 163, 308 P.2d 329 ["it is uniformly held that a constructive contempt can only be predicated on disobedience of a 'lawful' order of a court"] ; Silvagni v. Superior Court (1958) 158 C.A.2d 287, 291, 321 P.2d 15, supra, 120 ["disobedience of a void order made in excess of the jurisdiction of the court does not constitute a contempt"] ; Brady v. Superior Court (1962) 200 C.A.2d 69, 73, 19 C.R. 242, quoting the text; Grant v. Superior Court (1963) 214 C.A.2d 15, 19, 29 C.R. 125; Oksner v. Superior Court (1964) 229 C.A.2d 672, 681, 40 C.R. 621; In. re Berry (1968) 68 C.2d 137, 147, 65 C.R. 273, 436 P.2d. 273, quoting the text; 12 A.L.R.2d 1059; 56 Cal. L. Rev. 1665; and see discussion supra, 232.) In Marr v. Superior Court (1952) 114 C.A.2d 527, 532, 250 P.2d 739, the parties violated a void superior court order awarding child custody. In granting prohibition to prevent the lower court from holding them in contempt the appellate court said: "One accused of contempt for disobeying an order may purge himself by showing that the order is void or unlawful." Two other rules followed in California make it clear that the United Mine Workers doctrine cannot be applied here: p. 774 235 JURISDICTION (1) A void order is "a dead limb on the judicial tree," which has no provisional or interim effect. Hence, even though an appeal therefrom is pending in an appellate court, the trial court which rendered it may vacate it at any time. (Svistunoff v. Svistunoff (1952) 108 C.A. 2d 638, 641, 239 P.2d 650.) If the trial court may ignore or vacate its own void order at its pleasure, by what judicial whim does that order bind a party to obedience? (2) In a number of cases involving void orders for subpenas [sic] or for inspection of documents, it has been held that the party affected cannot get prohibition to prevent enforcement of the order. The reason, according to these cases, is that his normal and adequate remedy is deliberately to violate the void order, be adjudged in contempt, and then review the contempt order by habeas corpus. (See Smith Metropolitan Co. v. Superior Court (1940) 16 C.2d 226, 105 P.2d 587.) The refusal to grant prohibition in these cases seems wrong because the remedy

indicated is hazardous and therefore not adequate; but the cases clearly affirm the right to violate a void order without danger of punishment. (See also Provisional Remedies, 112.) B. Determination of Jurisdictional Issue as Res Judicata. 1. Jurisdiction of the Person. (a) [235] General Principle. Suppose a final decision on jurisdiction has been made by a decision of the lower tribunal in favor of its jurisdiction, and the objecting party either has failed to seek a review of the determination by motion or appeal or otherwise, or has had such a review and the reviewing court has upheld the determination. If the matter involved is jurisdiction of the person, when the determination becomes final it may be res judicata and no longer subject to attack, even though demonstrably wrong. The same reasons for application of the doctrine of res judicata apply here as in cases involving final determinations of substantive rights and liabilities. And, since jurisdiction of the person can be conferred by mere consent on a court which would otherwise have no such jurisdiction, it is not too great an additional step to hold that a party who litigates the question may be bound by the final determination of the court. (See generally Rest., Judgments 9; Rest., Conflict of Laws 451; Rest., Conflict of Laws 2d (Prop. Off. Draft) 96; American Surety Co. v. Baldwin (1932) 287 U.S. 156, 53 S.Ct. 98, 77 L.Ed. 231; Baldwin v. Iowa State Traveling Men's Assn. (1931) 283 U.S. 522, 51 S.Ct. 517, 75 L.Ed. 1244; 53 Harv. L. Rev. 652; 65 Harv. L. Rev. 852.) p. 775 236 JURISDICTION The jurisdictional determination is usually made in the original action. But the same principle applies where it is made in a subsequent action. Thus suppose a plaintiff gets a judgment by default in action No. I (no determination of jurisdictional issue). In action No. 2 the former defendant seeks equitable relief against the default judgment, and this second court determines that the first court had jurisdiction and that its judgment was valid. The validity of the first (default) judgment is now res judicata under the decision in the second action. (Rest., Judgments 9, Comment c; see Maloney v. Mass. Bonding & Ins. Co. (1942) 20 C.2d 1, 5, 123 P.2d 449.) (b) [236] Illustrations The following are typical illustrations of binding adjudications of jurisdiction of the person by determination of jurisdictional facts and law: (1) Where the basis of the state's jurisdiction over a person is his domicile: a final determination that he is domiciled therein, and subject to its jurisdiction. (Rest., Judgments 9; Rest., Conflict of Laws 451; Goodrich (Scoles), p. 38; cf. Simmons v. Superior Court (1950) 96 CA 2d 119, 125, 214 P.2d 844 [decision of federal district court, remanding case to state court on ground that no diversity of citizenship exists, held conclusive on issue of residence).)

(2) Where the basis of the state's jurisdiction over a foreign corporation is the doing of business in the state: a final determination that it is. (Rest., Judgments 9, 28, Comment b; Rest., Conflict of Laws 451; Mills Music v. Lampton (1940) 40 C.A.2d, 354, 358, 104 P.2d 893.) (3) Where the basis of the jurisdiction of the court over a defendant is his general appearance: a final determination of that fact. (Rest., Judgments 9, 19, Comment d, 20, Comment b; Rest., Conflict of Laws 451.) Thus, although a special appearance to challenge jurisdiction is not a submission to jurisdiction of the person (see supra, 124), it is a submission to jurisdiction to determine jurisdiction, so that the court may make a final determination that the purported special appearance was actually a general appearance. (4) 'Where the basis of jurisdiction of the court over a person is service of process: a final determination of the fact of valid service. In the usual collateral attack on a judgment on the ground of insufficient service, the face of the record (judgment roll) alone can be examined. If it recites the finding of jurisdictional facts, collateral attack is of course precluded. If it is silent on those facts, i.e., does p. 776 JURISDICTION 237 not disclose jurisdiction or nonjurisdiction, the judgment is nevertheless safe from collateral attack under the presumption of jurisdiction. In re Eichhoff (1894) 101 C. 600, 604, 36 P. 11, where the judgment roll contained no recital of service or appearance, states the principle as follows: "Every court is called upon to determine in the first instance whether it has jurisdiction to hear the cause before it, and its decision upon this point is entitled to the same presumption of verity as its decision upon any other point. It is also its duty, before it hears the complaint of the plaintiff, to determine whether the. defendant has been properly brought before it. . . . The fact that the court has rendered a judgment implies a determination by it before it assumed to hear the controversy, that it had jurisdiction over the subject matter of the action, and of the defendant against whom the complaint was directed. Its jurisdiction does not exist by virtue of its mere decision that it had jurisdiction, as that would be reasoning in a circle, but the presumption of its jurisdiction exists because it has been authorized to determine this question in the same mode as any other question of fact upon which its judgment is to rest, and its decision thereon is presumed to have been made upon evidence sufficient to sustain it." (See also Bennett v. Wilson (1901) 133 C. 379, 65 P. 880; Lumas Film Corp. v Superior Court (1928) 89 C.A. 384, 264 P. 792; Milstein v. Turner (1948) 89 C.A.2d 296, 299, 200 P.2d 799 [same principle applied to validity of order directing issuance of execution after 5 years, in collateral attack denying service of notice on defendant].) 2. Jurisdiction of the Subject Matter. (a) [237] Theory and Problem of Policy. At first thought a determination of jurisdiction of the subject matter might just as well be considered res judicata as a determination of jurisdiction of the person. But the problem is somewhat different. Jurisdiction of the subject matter, whether of the state itself or of the

particular court, does not solely concern the parties to the action. It may involve a state's sovereign power over property or status, conflicts between courts of different states or between state and federal courts, or limitations on the jurisdiction of a state court which give effect to important governmental policies. For these and perhaps other reasons there has been some reluctance in invoking the principle of res judicata in this field, and the Restatement of Conflict of Laws (451, Caveat) originally took no position on the matter. p. 777