Gould v. Richmond School District , 58 Cal. App. 2d 497 ( 1943 )

KNIGHT, J.

Plaintiff appeals from an order granting a motion to vacate and set aside the default of the defendant, Richmond School District, and the judgment entered against the district pursuant thereto, in an action to recover damages for personal injuries alleged to have been sustained by plaintiff while on school premises under the control of the district.

The default was entered on July 3, 1941, and the judgment on February 26, 1942. The school board consisted of three members, two of whom were never served with summons, and knew nothing about the existence of the action until after the entry of judgment. Within two months after the entry of judgment and on April 15, 1942, the district presented its motion to vacate and set aside the default and the judgment upon the ground that the defendant school district had not been served with summons and that therefore the trial court was without jurisdiction to enter the judgment. On April 20, 1942, the motion was granted.

The sole contention urged for reversal in plaintiff’s opening brief was that defendant’s motion constituted a collateral attack on the judgment and that therefore defendant was not permitted to go behind the recital in the judgment that “the summons and complaint were duly and regularly served upon the defendant ...” There is no merit in the contention.

As pointed out in defendant’s brief, the authorities of this state definitely hold (1) that the relief sought by a motion of this kind may be granted, as provided in section 473a (formerly part of sec. 473) of the Code of Civil Procedure, at any time within one year after the rendition of the judgment; and (2) that such a motion is a direct and not a collateral attack upon the judgment and therefore the moving party may show in contradiction of the recitals in the judgment that the judgment was rendered without having first acquired jurisdiction over the person of the defendant.

Among the authorities cited by defendant supporting the first point are the following: 14 Cal.Jur. 1062; Penland v. Goodman, 44 Cal.App.2d 14 [111 P.2d 913]; Smith v. Jones, 174 Cal. 513 [163 P. 890] ; Barnett v. Reynolds, 124 Cal.App. 750 [13 P.2d 514]; Vaughn v. Pine Creek Tungsten Co., 89 Cal.App. 759 [265 P. 491]; Richert v. Benson Lumber Co., 139 Cal.App. 671 [34 P.2d 840]; Estate of Estrem, 16 Cal.2d 563 [107 P.2d 36]; Sharp v. Eagle Lake Lumber Co., 60 Cal. App. 386 [212 P. 933]; Waller v. Weston, 125 Cal. 201 [57 P. 892]. In the case of Penland v. Goodman, supra, the court said: “The sole legal question involved, therefore, is whether a party against whom a default judgment was entered and who was not served with summons and complaint may, within a year after the entry of a judgment based upon an alleged service, have the same set aside on motion under the provisions of sections 473 and 473a of our Code of Civil Procedure. There are many California cases directly in point on this matter and we have not found any conflict in the decisions with respect to the right of a person to set aside such a judgment within a year after its entry. . . . However, the power and authority of a court to vacate a judgment not void on the face of the judgment roll but void in fact for want of jurisdiction of the person of the defendant by reason of nonservice of process upon such defendant, exists independently of the provisions of section 473 of the Code of Civil Procedure or of any other statutory provisions, if the motion is made within a reasonable time. ’ ’ And in the case of Barnett v. Reynolds, supra, the court in dealing with a similar motion put it this way: “The contention of appellant that the motion was one made under the provisions of section 473 of the Code of Civil Procedure, and was therefore barred by the limitation contained in said section, having been made more than six months after the entry of judgment, is without merit. The motion though not made within six months of the entry of judgment was made within less than one year therefrom. Where, as here, the motion to set aside a default judgment is made upon grounds not specified in section 473 of the Code of Civil Procedure, but is one addressed to the general equity powers of the court, it must be made within a reasonable time. Under circumstances similar to those presented in the instant case, it has been held that one year was a reasonable time within which to make the motion.”

The following are some of the authorities holding that a motion of this kind is a direct and not a collateral attack: Norton v. Atchison etc. R. R. Co., 97 Cal. 388 [30 P. 585, 32 P. 452, 33 Am.St.Rep. 198] ; Vaughn v. Pine Creek Tungsten Co., supra; Sharp v. Eagle Lake Lumber Co., supra; In re Dahnke, 64 Cal.App. 555 [222 P. 381]; 15 Cal.Jur. pp. 46, 47. As claimed by defendant, the cases last cited hold uniformly that a motion to vacate a default judgment upon the ground of want of jurisdiction because of failure to serve process is a direct and not a collateral attack on the judgment; and that even though the judgment is valid on its face and recites due service of process, it may be shown, in support of the motion, by evidence dehors the record, that the defendant was actually not served; and that the recitals in the judgment are not conclusive and that the collateral attack rule has no application; also that the relief may be granted at any time within one year from the rendition of the judgment. So clearly do those cases so hold that quotations therefrom or comment thereon would seem wholly unnecessary.

The authorities cited by plaintiff are not in point for the reason that they did not involve motions to vacate made within the time prescribed by law. They are cases in which it was held that the applications were made too late or where the question of jurisdiction was raised in a collateral proceeding and therefore constituted a collateral attack.

In plaintiff’s closing brief, filed several days prior to oral argument, he questioned for the first time the soundness of the trial court’s finding that the defendant was not served with summons. As said in the following cases, points raised at this state of the proceeding for the first time have been refused consideration by reviewing courts unless some meritorious reason is shown why they were not made in the opening brief. (Monk v. Ehret, 192 Cal. 186 [219 P. 452] ; Kahn v. Wilson, 120 Cal. 643 [53 P. 24]; 2 Cal.Jur. 734.) Moreover, the appeal herein is presented on a bill of exceptions, which does not set forth a copy of the judgment containing the recitals relied on by plaintiff, nor is there anything of an evidentiary character set forth in the bill showing that summons was ever served on any person. It does affirmatively appear from the bill that there were three duly qualified and acting members of the school board, and the affidavits of two of them, namely, Patterson and Fraser, are set forth in the bill, in which they aver that they were never served with summons and knew nothing of the existence of the action until after the entry of the judgment. The transcript on appeal, besides embodying a copy of the bill of exceptions contains without any certification by the trial judge or the county clerk copies of certain papers, most of which go to make up the judgment roll and among them is a copy of the affidavit of the service of summons on J. 0. Ford, president of the school board. In view of that state of the record, defendant, in its brief and at the time of oral argument, strenuously contended that inasmuch as the judgment and affidavit of service of summons on Ford were not incorporated in the bill of exceptions, the contents of neither could be considered in the determination’ of any issue raised by the appeal. In reply to defendant’s contention plaintiff argued that since it appeared from the bill of exceptions that said judgment and said affidavit of service were considered by the trial court in the determination of the question of whether there was a valid service of summons in the action, and that said judgment and affidavit of service were in the possession of the clerk of the trial court, it was within the province of this court to order certified copies thereof to be filed in this court for the purpose of assisting the court in the disposal of the appeal. (Parker v. Shell Oil Co., 55 Cal.App.2d 48 [130 P. 2d 158].) Thereafter, to obtain such an order, plaintiff filed a motion for diminution of the record.

Assuming for all the purposes of this appeal that plaintiff is entitled to urge the point of the unsoundness of the trial court’s finding and that the state of the record is such that this court is permitted to consider the contents of the judgment and the affidavit of service of summons, we agree with the trial court’s conclusion that there was no such service of process in the action as gave the trial court jurisdiction to enter the default or the judgment. In Corpus Juris (vol. 56, p. 789) the rule is stated as follows: “Where the suit is against a corporate school board, and there is no statute governing the matter, process should be served upon each member of the board in his official capacity” (citing authorities); and in this state there is no statute governing the matter. Section 411 of the Code of Civil Procedure prescribes how and upon whom service of summons in a civil action must be made. The section contains seven separate subdivisions. The first, second and sixth pertain to suits brought against domestic and foreign corporations, and corporations which have forfeited their charters. The third and fourth subdivisions have to do with suits against minors and persons of unsound mind. The fifth covers actions brought against “a county, city or town,” and provides that in such cases the summons must be served by delivering a copy “To the president of the board of supervisors, president of the council or trustees, or other head of the legislative department thereof.” The seventh subdivision provides generally that “In all other eases” the summons must be served on “the defendant personally.”

Domestic and foreign corporations are specifically defined by the Civil Code (secs. 278 and 405); and obviously a school district cannot be classed as either. Nor is it a county, city or town. It is said to be a political subdivision of the state, but as such is an independent and separate governmental agency distinct from the county, city or town in which it is wholly or in part territorially situated. (Ward v. San Diego School District, 203 Cal. 712 [265 P. 821]; Skelly v. Westminster School District, 103 Cal. 652 [37 P. 643].) By virtue of charter provisions of the city of Richmond, the school board of the defendant Richmond School District is designated as a board of education; nevertheless the duties and powers it may exercise are the same as those fixed by the general law for governing boards of trustees of school districts, and under the general law members of a school board are not permitted to act individually or singly; they must act as a board. In this connection attention may be called to section 2.141 of the School Code, which provides: “In the name by which the district is designated the trustees may sue and be sued, and hold and convey property for the use and benefit of such school district.” (Italics ours.) Therefore, since in the absence of specific statutory authority a member of the board acting singly has not the power to incur any liability against the district, it would seem to follow necessarily that in the absence of specific statutory authority a court may not acquire jurisdiction to fasten a liability on the district where only one member of the board has been served with process. To hold otherwise would, in our opinion, establish a dangerous judicial rule; and this is clearly demonstrated by the situation presented by this case. The summons was served on only one member of the board, and the other two members knew nothing of the existence of the action until after the judgment was entered. That was more than eight months after the service of the summons on Ford. No explanation is disclosed by the record as to why he did not notify either of the other members of the board, nor is any reason given for not having served summons on either of the other members. The result was that through the apparent inadvertence or neglect of the one member of the board who was served with summons, a default judgment for $40,000 was obtained against the school district.

Plaintiff seems to contend that as in cases of actions against municipalities, if the summons is served on the president of a school board it is legally sufficient to give the court jurisdiction over the school district. It is apparent, however, that if the Legislature had intended such to be the law it would have inserted the words “or school district” immediately after the word “town” in subdivision 5 of said section 411 of the Code of Civil Procedure; and not having done so it is beyond the power of the courts to rewrite the subdivision and insert those words by way of judicial decision. The Missouri case emphasized by plaintiff (Carr v. School District of Belton, 42 Mo.App. 154) appears to be based on some statute in that state which authorized the service of summons in an action against “a body corporate” to be made on the “head officer” of the body corporate. And the basic ground for the decision in the other case relied upon by plaintiff (School District No. 9 of Richmond County v. Fowles, 87 S.C. 552 [70 S.E. 315]) was that the recitals in the judgment as to service of summons were conclusive. For these reasons we do not deem either of those cases here controlling. Nor under the school law of this state may it be held, as plaintiff seems to argue, that the president of the school board by virtue of his position is given any implied power to accept service of summons in behalf of the district.

It may be that in some cases peculiar or unforeseen conditions might exist which would make it impossible to obtain service of summons on each and every member of the school board; and that in such case it properly could be held that service on a majority of the members of the board would be legally-sufficient to acquire jurisdiction over the school district. But we are not here confronted with any such situation, for as already pointed out, no reason whatever is suggested by the record why either of the other two members of the board was not served with summons. It is our conclusion, therefore, that under the facts here presented, the trial court properly held that service of summons on one member of the board, even though he was the president of the board, was not service of summons on the defendant school district.

For the reasons stated the order appealed from is affirmed; and the motion for diminution of record is dismissed, the purpose thereof having become moot.

Ward, J., concurred.