CHAPTER L. JUDGMENT IN GENERAL. § 1361. What is a judgment.-A judgment is a final determination of the rights of the parties in the action or proceeding.1 A decision on motion to set aside an order of dismissal and for reargument of a demurrer is an order after final judgment, and not a judgment.2 But judgment for defendant, upon sustaining demurrer and plaintiff's election to stand, is a final judgment.3 Every definite sentence or decision of a court, by which the merits of a cause are determined, although it be not technically a judgment, or the proceedings are not capable of being enrolled so as to constitute what is technically called a record, is a judg ment within the meaning of the law, and as such subject to the revisory jurisdiction of the appellate court. It should distinctly express what is given or denied. The opinion of the judge on collateral matters is no part of the judgment, nor his reasons given in his findings. An entry by the clerk, at the end of the trial, in the minutes of the court, of the decision of the judge, does not constitute a judgment, though it constitutes the rendition of judgment when findings are waived. When findings of fact are not waived, and are filed by the court, they constitute the rendition of judgment.s § 1362. Jurisdiction of court.-If the court has jurisdiction of the person of the defendant and the subject-matter, the judg 1 Cal. Code Civ. Proc., § 577. See, also, Martin v. Simpkins, 20 Colo. 438, 38 Pac. 1092. 2 Oliver v. Kootenai Co., 13 Idaho, 281, 90 Pac. 107. 3 Wood v. Missouri Pacific Ry. Co., 152 Cal. 344, 92 Pac. 868. 4 Belt v. Davis, 1 Cal. 138. A judgment becomes "rendered" at the time the court pronounces its decision. Estate of Cook, 77 Cal. 220, 11 Am. St. Rep. 267, 17 Pac. 923, 19 Pac. 431, 1 L. R. A. 567. See McLaughlin v. Doherty, 54 Cal. 519; Young v. Wright, 52 Cal. 407; Har mon v. Comstock Cattle Co., 9 Mont. 248, 23 Pac. 470. V. 5 14 Vin. Abr. 612; 6 Dane Abr. 90; Lawes' Pl. 669; Whitaker Bramson, 2 Paine, 209, Fed. Cas. No. 17526. 6 Ward v. The Fashion, 1 Newb. 41, 6 McLean, 195, Fed. Cas. No. 17155. 7 Burke v. Table Mountain Water Co., 12 Cal. 403. 8 Crim v. Kessing, 89 Cal. 478, 23 Am. St. Rep. 491, 26 Pac. 1074; San Joaquin Land etc. Co. v. West, 99 Cal. 345, 33 Pac. 928. ment is good against a collateral attack, however erroneous it may be. If it appear by the record or otherwise that the court never had jurisdiction over the person of the defendant, the judgment will be pronounced a nullity, whether it comes directly or collaterally in issue, and a sale of property under it will be void also.10 A party against whom a judgment has been rendered by a court of general jurisdiction will be presumed to have been made a party to the suit in some of the ways provided by law, unless the contrary appears affirmatively by the record.11 Death of a party pending suit does not oust the court of jurisdiction, and judgment is not void, but voidable only.12 It is proper to enter judgment on the complaint in vacation, when defendant refuses to answer after his demurrer to the complaint has been overruled.13 The superior courts in California, by virtue of their organization and common-law powers, have full authority, except when imited by the constitution or Practice Act, to pronounce such judgment as the exigency of each case shall require.14 Jurisdiction will generally be presumed in the case of superior courts; but if the want of jurisdiction appears on the face of the record of the judgment of a superior court, the judgment is void, and it may be attacked in a collateral proceeding. 15 The true test is whether the omission be of the form or of the substance of the act required to be performed. If of the substance, then the judgment is a nullity; if of form, only an irregularity.16 The presumption in favor of a judgment of a court of general jurisdiction is overthrown when the record of the entire case discloses a want of jurisdiction.17 But this presumption does not apply to judgments of inferior courts. In such case, the facts giving jurisdiction must be shown.18 The jurisdiction sufficient 14 Stewart v. Levy, 36 Cal. 159. 9 Moore v. Martin, 38 Cal. 428, citing Hahn v. Kelly, 34 Cal. 391, 94 Am. Dec. 742. 10 McMinn v. Whelan, 27 Cal. 313; Whitwell V. Barbier, 7 Cal. 54; Forbes v. Hyde, 31 Cal. 342. See Moyer v. Bucks, 2 Ind. App. 571, 50 Am. St. Rep. 251, 28 N. E. 992, 16 L. R. A. 231. 11 Sharp v. Daugney, 33 Cal. 505. 12 Todhunter v. Klemmer, 134 Cal. 60, 66 Pac. 75. 13 Hereford v. Benton, 20 Colo. App. 500, 80 Pac. 499. 15 Forbes v. Hyde, 31 Cal. 342; Affirmed in Hahn v. Kelly, 34 Cal. 391, 94 Am. Dec. 742; Drake v. Duvenick, 45 Cal. 464; Coit v. Haven, 30 Conn. 190, 79 Am. Dec. 244. See, also, Cal. Code Civ. Proc., § 1908. 16 Hahn v. Kelly, 34 Cal. 391, 94 Am. Dec. 742. 17 Gray v. Hawes, 8 Cal. 569. 18 Rowley v. Howard, 23 Cal. 404; Jolley v. Foltz, 34 Cal. 326. to sustain a record is jurisdiction over the cause, over the parties, and over the thing, when a specific thing is the subject of the judgment. 19 It is essential to the validity of a judgment that it be rendered by a court of competent jurisdiction at the time and place and in the form prescribed by law.20 A judgment does not depend upon the clerk performing his duty in making up the judgment-roll, or in preserving the papers. If the facts necessary to give jurisdiction to the court exist, the judgment is good. 21 § 1363. Final judgment.-The correct rule appears to be that the words "final judgment" must be understood as applying to all judgments and decrees which determine the particular cause, and that it is not requisite that such judgment should finally decide upon the rights which are litigated.22 So an order setting aside a former judgment is a final judgment. Every definite sentence or decision of court by which the merits of the case are determined is a final judgment.23 But no question must be reserved.24 So a judgment dismissing a suit in which a temporary injunction had been granted is a final judgment.25 A judgment by an equally divided court, affirming the judgment of the court. below, is a determination as final as if rendered by a unanimous court. 26 A judgment on default entered by a court commissioner, under the constitutional provision giving such commissioners the power of superior judges at chambers, subject to review by the superior court, is a final judgment, if no steps are taken for its review.27 The judgment or decree of a court of competent jurisdiction is not only final as to matters actually determined, but as to every other matter which the parties might have litigated and had decided under the pleadings. 28 So a failure to plead a 19 Cal. Code Civ. Proc., § 1917. 20 Wicks v. Ludwig, 9 Cal. 173. 21 Lick v. Stockdale, 18 Cal. 219; Sharp v. Lumley, 34 Cal. 611; Hutchinson v. Bours, 13 Cal. 50; Sieber v. Frink, 7 Colo. 148, 2 Pac. 901. 22 Belt v. Davis, 1 Cal. 138; Cooly v. Patterson, 52 Me. 472; Sheldon v. Williams, 52 Barb. 183; Klink V. Steamer Cusseta, 30 Ga. 504. 23 Explaining Loring v. Illsley, 1 Cal. 28; Belt v. Davis, 1 Cal. 135. 24 Belmont v. Ponvert, 3 Robt. 693. 25 Dowling v. Polack, 18 Cal. 625, in favor of the defendant; Leese v. Sherwood, 21 Cal. 151. As to order, as contradistinguished from a final judgment, see Gilman v. Contra Costa County, 8 Cal. 57, 68 Am. Dec. 290; McKinley v. Tuttle, 34 Cal. 235. 26 Durant v. Essex County, 7 Wall. 107, 19 L. Ed. 154. 27 Peterson v. Dillon, 27 Wash. 78 67 Pac. 397. 28 Phelan v. Gardner, 43 Cal. 311; Harris v. Harris, 36 Barb. 88; Clemens v. Clemens, 37 N. Y. 59. defense which the party was bound to present is a waiver by which the party is concluded.29 So when a fact is necessarily found and determined, it is final and conclusive between the parties, not only when the subject-matter is the same, but when the point comes incidentally in question in regard to a different matter.30 Although a judgment may be final with reference to the court that pronounced it, and as such be the subject of appeal, yet it is not necessarily final with reference to the property or rights affected, so long as it is subject to appeal and liable to be reversed.31 The court need not include in the judgment a statement of its effect upon other designated persons not parties to the action.32 There can be but one final judgment in an action, and that is one which ends the suit in the court in which it is entered, and finally determines the rights of the parties in relation to the matter in controversy.33 The fact of a reference being had after judgment does not of itself determine that the judgment is not final. And if the reference be only for the purpose of executing the judgment after all the rights of the parties have been determined, then the judgment is final.34 A judgment directing an accounting and not establishing any certain indebtedness is inter 29 Dewey v. Peck, 33 Iowa, 242; Malloney v. Horan, 49 N. Y. 115, 10 Am. Rep. 335; Burwell v. Knight, 51 Barb. 267. 30 Gray v. Dougherty, 25 Cal. 272; Caperton v. Schmidt, 26 Cal. 493, 85 Am. Dec. 187; Garwood v. Garwood, 29 Cal. 521. See, as to effect of a judgment, Cal. Code Civ. Proc., § 1908. As to what judgments are final, consult, in ejectment, Smith v. Trabue's Heirs, 9 Pet. 4, 9 L. Ed. 30; by default on promissory notes, Clements v. Berry, 11 How. 398, 13 L. Ed. 745; in action on contract, Whitaker v. Bramson, 2 Paine, 209, Fed. Cas. No. 17526. The distinction between a judgment which is final and one which is definitive, explained in United States v. The Peggy, 1 Cranch, 103, 5 L. Ed. 49. As to what decrees are final, and when decrees become final, consult Jenkins v. Eldredge, 1 Woodb. & M. 61, Fed. Cas. No. 7269; Porter V. United States, 2 Paine, 313, Fed. Cas. No. 33 Stockton Harvester Works V. Glen's Falls Ins. Co., 98 Cal. 559, 33 Pac. 633. As to judgment pro forma, finality of, see Adams v. Smith, 6 Dak. 94, 50 N. W. 720. Finality of judg ment, ancillary provisions. Sharon v. Sharon, 79 Cal. 633, 22 Pac. 26, 131. 34 Arnold v. Sinclair, 11 Mont. 556, 28 Am. St. Rep. 489, 29 Pac. 340. As to final decree ordering restitution, locutory, and not final.35 The interlocutory decree known to the old equity practice is not conclusive, like an interlocutory decree in partition, but may be modified by the final decree.36 An order overruling a demurrer with leave to amend is not a final judgment.3 37 § 1364. Judgment must follow allegations and proofs.-The rule that judgment should be rendered in conformity with the allegations and proofs of the parties, secundum allegata et probata, is fundamental in the administration of justice.38 Not on the complaint alone, but on a reasonable construction of all the pleadings, does a judgment vest.39 The relief granted to the plaintiff, if there be no answer, cannot exceed that which he shall have demanded in his complaint; but in any other case the court may grant him any relief consistent with the case made by the complaint and embraced within the issue.40 So of a decree in equity,41 as where the complaint fails in equity, but is sufficient to support money judgment.42 And resort may be had to the pleadings to explain and limit the language of a judgment.43 Although the distinctions between proceedings at law and in equity have been abolished, yet it is evident that judgments at law and in equity cannot be assimilated.44 But affirmative relief may be granted, though not asked for in the answer.4 45 So held in an action for the fraudulent issue of stock, and to adjust claims growing out see Sprague v. Locke, 1 Colo. App. 171, 28 Pac. 142. 35 Clarke v. Baird, 98 Cal. 642, 33 Pac. 756. 36 Thompson v. White, 76 Cal. 381, 18 Pac. 399. 37 Bode v. New England Investment Co., 1 N. Dak. 121, 45 N. W. 197. V. 38 Green v. Covillaud, 10 Cal. 332, 70 Am. Dec. 725; Tomlinson v. Monroe, 41 Cal. 96; Christian College v. Hendley, 49 Cal. 349; Bender Bender, 14 Or. 353, 12 Pac. 713; Woodward v. Oregon etc. Nav. Co., 18 Or. 299, 22 Pac. 1076; Rankin v. Newman, 107 Cal. 602, 40 Pac. 1024. 39 Chesney v. Chesney, 33 Utah, 503, 94 Pac. 987. 40 Cal. Code Civ. Proc., § 580; Kelsey v. Western, 2 N. Y. 506; Bailey v. Ryder, 10 N. Y. 363; Rome Exch. Bank v. Eames, 1 Keyes, 588; Wright v. Delafield, 25 N. Y. 266; reversing, 23 Barb. 498; Coleman v. Second Ave. R. R. Co., 38 N. Y. . 201; Gilmore v. Burch, 7 Or. 374, 33 Am. Rep. 710. 41 Boone v. Chiles, 10 Pet. 177, 9 L. Ed. 388; Jackson v. Ashton, 11 Pet. 229, 9 L. Ed. 698. 42 Donovan v. McDevitt, 36 Mont. 61, 92 Pac. 49. 43 Pomona Land etc. Co. v. San Antonio Water Co., 152 Cal. 618, 93 Pac. 881; Reaves v. Turner, 20 Okla. 492, 94 Pac. 543. 44 Butler v. Lee, 3 Keyes, 76, 33 How. Pr. 251; Towle v. Jones, 1 Robt. 87; Mann v. Fairchild, 2 Keyes, 106. 45 Cal. Code Civ. Proc., § 666. |