LOS ANGELES RAILWAY COMPANY v. DAVIS.

[146 Cal. 179, 79 Pac. 865.]

PLEADING CORPORATE EXISTENCE - Demurrer. — The point that the plaintiff is not a corporation goes only to its capacity to maintain the action, and cannot be raised by general demurrer, but only by special demurrer, on the ground that the plaintiff has no capacity to sue, and not then, unless such want of capacity appears affirmatively on the face of the complaint. (pp. 20, 21.)

F. G. Hentig and T. N. Stewart, for the appellants.

Bicknell, Gibson & Trask, for the respondent.

180 MCFARLAND, J. This is an action to quiet title to certain land. Defendants demurred to the complaint upon the gen. eral ground that it does not state facts sufficient to constitute a cause of action-no other ground of demurrer being stated. The demurrer was overruled. Defendants then answered, denying plaintiff's title to the land, and setting up title in themselves. The court found for the plaintiff and rendered judgment accordingly. Defendants appealed from the judgment upon the judgment-roll.

The only point made by appellants for a reversal is, that the complaint does not contain an averment that plaintiff is a corporation. The fact as to this contention is, that while in the title of the case as it appears at the commencement of the complaint the plaintiff is designated as "a corporation," there is no averment in the body of the complaint of plaintiff's corporate existence. The court found that plaintiff was a corporation.

Waiving other questions discussed by counsel, we are satisfied that the point sought to be made by appellants is not raised by the general demurrer. The point that plaintiff was not a corporation goes only to its capacity to maintain an action, and not to the sufficiency of the facts averred to constitute the alleged cause of action; and therefore it could be raised by demurrer to the complaint only under subdivision 2 of section 430 of the Code of Civil Procedure, which provides as a cause of demurrer "that plaintiff has not legal capacity to sue"-and then only where said want of capacity "appears on the face" of the complaint. If it does not so appear, 181 the objection must be taken by answer pursuant to section 433. There are some authorities which appear to support appellants' contention, and the principal one cited by them is Miller v. Pine

Min. Co., 3 Idaho, 493, 35 Am. St. Rep. 290, 31 Pac. 803, but in the notes to the case the author of the work, after expressing his disapproval of the doctrine announced therein, cites a multitude of cases holding the other way. We will notice only the first case cited by the author-Phoenix Bank v. Donnell, 40 N. Y. 410-because it has more than once been referred to and approved by this court. In that case there was no averment in the complaint that the plaintiff was a corporation, and it is not even called a corporation in the title, and the demurrer there was upon the ground that it appeared that "plaintiff has no legal capacity to sue," and also upon the general ground that it did not state facts sufficient to constitute a cause of action. (Section 144 of the New York code is the same as section 430 of our code, and section 147 the same as our section 433.) The demurrer was overruled in the lower court and the judgment was affirmed in the court of appeals. As to the first ground of demurrer the court said: "All that the argument proves is, that the complaint does not show upon its face, affirmatively, that the plaintiff has capacity to sue. But to sustain the demurrer, the code requires that it should appear upon its face that it had not such capacity, which in no respect appears. For aught appearing upon the face of the complaint, the plaintiff may be a corporation entitled to sue as such. Section 147 provides that when any of the matters enumerated in section 144 do not appear upon the face of the complaint, the objection may be taken by answer. This would seem to indicate the proper practice with sufficient clearness. If it appears upon the face of the complaint that a plaintiff suing as a corporation is not such in fact, a demurrer is the proper remedy of the defendant under section 144. If the complaint does not show that the plaintiff is not a corporation on its face, the objection that it is not such must be taken by answer under section 147. This would seem to render further discussion of the question unnecessary." With respect to the second ground of demurrer in that case-which is the only ground 182 in the case at bar-the court says: "The appellant's counsel insists that if the demurrer is not sustainable upon the second ground specified in section 144, it is upon the sixth. In this the counsel is in error. That relates only to the statement of facts constituting the cause of action. If this statement fails to show a right of action, then a demurrer on this ground may be interposed. But it has no application to the capacity of the plaintiff to sue or to the other grounds of demurrer specified." This case was expressly approved, and the rule there stated declared to be right

by this court in Swamp etc. Land Dist. No. 110 v. Feck, 60 Cal. 403. In that action the plaintiff was designated in the title of the case as "Swamp and Overflowed Land Reclamation District No. 110 of the State of California," but there was no averment in the complaint that plaintiff was ever a swamp and overflowed land district; and for this omission the complaint was demurred to because it did not state facts sufficient to constitute a cause of action. (There was also a second cause of demurrer that two separate causes of action had been improperly united.) The court said: "The first ground of demurrer is, that the complaint does not state facts sufficient to constitute a cause of action. The objections specified are in substance that it does not appear from the complaint that the plaintiff was ever duly created a swamp and overflowed land district. That objection, however, if well taken, would go to the legal capacity of the plaintiff to sue, and not to the sufficiency of the facts stated to constitute a cause of action: Phoenix Bank v. Donnell, 40 N. Y. 410." And the court, following the New York case, said further: "A demurrer on the ground that the plaintiff has not legal capacity to sue would be bad, because it does not appear upon the face of the complaint that the plaintiff has not. It is not a good ground of demurrer that it does not appear in the complaint that the plaintiff has the legal capacity to sue. That omission can only be taken advantage of by answer: Code Civ. Proc., sec. 432; Phoenix Bank v. Donnell, 40 N. Y. 410." In Miller v. Luco, 80 Cal. 257, 22 Pac. 195, the said case of Swamp Land Dist. v. Feck, 60 Cal. 403, is expressly approved, and quotations made from it which refer to Phoenix Bank v. Donnell, 40 N. Y. 410; and the same thing occurs in Wilhoit v. Cunningham, 87 Cal. 458, 25 Pac. 675. Appellant cites as supporting a different rule Oroville etc. 183 R. R. Co. v. Plumas County, 37 Cal. 360, Loup v. California Southern R. R. Co., 63 Cal. 97, and People v. Central Pacific R. R. Co., 83 Cal. 395, 23 Pac. 303. In the Oroville case the legal existence of the plaintiff as a corporation was denied in the answer, and no question as to the sufficiency of the complaint was involved. In the Loup case the author of the leading opinion, after holding that the demurrer to the complaint ought to have been sustained for various other reasons, merely adds, as a sort of further assurance, that "in the fourth count of the complaint there is no averment of the defendant's corporate existence"; but no one of the other justices concurred in that expression. In People v. Central Pac. R. R. Co., 83 Cal. 395, 23 Pac. 303, the writer of the main opinion, after holding

that the demurrer to the complaint was properly sustained upon various grounds, which are elaborately discussed, does say that "an averment of defendant's corporate existence is necessary in every count of the complaint against a corporation"-citing the Loup case; but there is no discussion of the question and no reference to the cases above referred to, where the question was directly before the court and expressly adjudicated, approving and restating the rule announced in Phoenix Bank v. Donnell; the sentence quoted was not necessary to the decision, and it cannot be taken as overruling those cases. Moreover, Wilhoit v. Cunningham, 87 Cal. 458, 25 Pac. 675, was the latest declaration of the court on that subject. And we are satisfied that in Swamp Land Dist. No. 110 v. Feck, 60 Cal. 403, and in the subsequent cases approving it, above cited, the rule is correctly declared.

Under the above views it is not necessary to consider respondent's discussion of "aider by verdict" and other points made by it.

The judgment appealed from is affirmed.

Lorigan, J., and Henshaw, J., concurred.

In an Action by or Against a Corporation, it is unnecessary to aver its corporate existence, except in cases where the action, in its gist or substance, involves the fact of corporate existence. Failure to allege corporate existence in an action against a corporation cannot be taken advantage of by general demurrer: Holden v. Great Western Elevator Co., 69 Minn. 527, 65 Am. St. Rep. 585. See, too, Parker v. Carolina Sav. Bank, 53 S. C. 583, 69 Am St. Rep. 888; Brady v. National Supply Co., 64 Ohio St. 267, 83 Am. St. Rep. 753; note to Miller v. Pine Min. Co., 35 Am. St. Rep. 291, 292. But compare Miller v. Pine Min. Co., 3 Idaho, 493, 35 Am. St. Rep. 289.

GRANNIS v. SUPERIOR COURT.

[146 Cal. 245, 79 Pac. 891.]

JUDGMENT, Power of Court Over, When Terminates.-After proceedings to vacate a judgment on motion for a new trial, or on appeal, or under section 473 of the Code of Civil Procedure have ended, and the time therefor has expired, the superior court has no power to vacate or modify its judgment in a matter of substance on account of judicial error in the decision, no matter how apparent such error may be on the face of the record. (pp. 25, 26.)

JUDGMENT, Motion to Vacate or Modify, When a Matter of Substance, and not for the Correction of a Clerical Error.-A motion to modify a judgment by striking therefrom that part purporting to grant an absolute and immediate divorce, on the ground that

the court had not jurisdiction at the time of granting such divorce, goes to the substance and effect of the judgment, and is not for the correction of a clerical error, and hence cannot be granted after the time to appeal from, or to modify or vacate, the judgment as fixed by the statute has expired, unless the judgment in respect to the provision referred to is void. (p. 26.)

JUDGMENT of Divorce, When Void.-If a statute provides that a court in actions for divorce must, after the trial thereof, file its decision and conclusions of law, and, if it determines that a divorce ought to be granted, must enter an interlocutory judgment declaring that the party in whose favor the court decides is entitled to a divorce, and that one year after such interlocutory judgment is entered, the court may, on motion of either party, or upon its own motion, enter a final judgment granting the divorce, a judgment entered in the first instance granting an absolute and immediate divorce is not erroneous merely, but is beyond the jurisdiction of the court, and void. (p. 30.)

JUDGMENT, When Void on Collateral Attack.-The cases holding judgments valid on collateral attack, though founded upon an erroneous view of the law, are none of them cases in which the law which the court mistook was the law which vested it with jurisdiction over the subject matter. (p. 32.)

JURISDICTION of the Subject Matter, When Open to Inquiry. Where the question upon which jurisdiction depends is one of law purely, jurisdiction over the subject matter is always open to collateral inquiry. (p. 33.)

CONSTITUTIONAL LAW-Divorce, Statute Denying Right for One Year to Enter a Final Decree of.-Though the constitution confers jurisdiction on the superior courts over actions for divorce, a statute requiring the court in such actions, if it finds the party entitled to a divorce, to enter a decree so declaring, but not to enter final judgment until one year after the entry of the interlocutory decree, is not unconstitutional. (pp. 33, 34.)

JUDGMENT of Divorce, Motion to Vacate by Striking a Void Provision from.-Where a decree is void in so far as it purports to grant an immediate divorce, the court may, at any time, on its own motion or the motion of either party, so declare, and may modify such decree by striking the void provision therefrom. (p. 34.)

Galpin & Bolton, for the petitioner.

A. P. Van Duzer, for the respondents.

245 SHAW, J. This is a proceeding in prohibition to prevent the superior court of San Francisco from acting upon a motion pending before it to modify a judgment.

246 On June 25, 1903, an action for divorce, in which Amelia B. Grannis was plaintiff and James G. Grannis was defendant, was regularly tried by the superior court, and on July 1, 1903, said court rendered and entered its judgment in said action purporting to grant an absolute and immediate divorce to the plaintiff. The decree as entered was signed by the judge, and the decree proper was preceded by a recital that it appeared to the