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District Court of Appeal, Second District, Division 1, California.


Civ. 13266.

Decided: June 17, 1942

Marcel E. Cerf, Robinson & Leland, of San Francisco, for plaintiff and appellant. Gavin McNab, Schmulowitz, Akins & Wyman, of San Francisco, for defendants and appellants. Don Lake and James R. Jaffray, both of Los Angeles, for respondents.

Plaintiff and certain defendants appeal from a final judgment, from an order granting a motion for entry thereof nunc pro tunc, and from an order denying a motion to set aside the said judgment and the order granting entry thereof. The action was one brought by plaintiff for rescission of a certain property settlement agreement between plaintiff and the defendant Anna Inez Mather, plaintiff's wife at the time. The complaint contained three counts for rescission, the first two based upon fraud and misrepresentation, and the third upon the alleged invalidity of the agreement because of its having been made in the Territory of Hawaii at a time when according to plaintiff's allegations, the laws of that territory did not permit a wife to make a contract with her husband. The other defendants here appealing were joined in the action as administrators of the estate of Louis R. Greenfield deceased, against which it was alleged plaintiff held an approved claim with an unpaid balance of $38,699, together with accrued interest. Part of the property transferred by the aforesaid agreement to the defendant Anna Inez Mather was a one–half interest in this claim. These defendant administrators filed an answer to the complaint herein to the effect that they held on account of the claim in question, and for whom it might concern, the sum of $12,549.60; and that various assignments and notices of assignment had been served upon these defendants affecting the said fund, defendant Anna Inez Mather, also known as Dorothy Devore Mather, being among the claimants to said fund. The defendant administrators then averred in their answer that they were holding the said sum subject to the order and direction of the court, and asked that they might be dismissed with their costs and released from all further liability toward the parties to the action and towards all claimants to the fund. This answer was in the nature of an interpleader. Successive demurrers to the third count of the complaint were sustained; and upon sustaining the fourth such demurrer the court denied plaintiff's request for leave to amend further. Thereafter, and before trial of the other counts, a purported judgment was entered January 4, 1935, upon the order sustaining the demurrer to the third count. On February 7, 1935, plaintiff filed notice of appeal from this purported judgment. The separate appeal from this judgment was dismissed on the ground that such a judgment was not final and hence not appealable. Mather v. Mather, 5 Cal.2d 617, 55 P.2d 1174. The action then proceeded to trial upon the first and second counts, findings thereon were made and a judgment entered March 14, 1935, which judgment was based upon the first and second counts of the complaint only. An appeal was taken from this latter judgment, but that appeal was dismissed by the Supreme Court for failure to file a transcript. See Greenfield v. Mather, 14 Cal.2d 228, 231, 93 P.2d 100, 102, wherein it is also stated that at the time of the decision as to the first judgment the appeal from the second judgment had already been dismissed on the grounds above noted. The judgment upon the first and second counts was in favor of respondent Anna Inez Mather and against appellant A. W. Mather. Thereafter, as appears from the opinion in Greenfield v. Mather, supra, the estate of Greenfield commenced an action in interpleader in the Superior Court of the City and County of San Francisco to try the issue as to the respective rights of appellant and respondent to the sum of $12,549.60 above mentioned. In this latter action appellant and respondent joined issue by cross–complaints and answers. The issues thus raised were the same as those in the instant action. In the San Francisco action the trial court concluded that the prior judgment in the instant action was final and appellant's plea in bar to respondent's defense was well taken; and, accordingly the court made findings and rendered judgment directing distribution of the fund in question to respondent Anna Inez Mather and to those defendants claiming under her. Appellant, A. W. Mather, appealed. Greenfield v. Mather, supra, is concerned with the appeal there taken. In Greenfield v. Mather the court held that the judgment in the instant action entered upon the first and second causes of action of the complaint, was, like the judgment previously entered upon demurrer to the third cause of action, only a partial judgment, and that therefore no final judgment had been entered in the instant action which could constitute a bar to raising the same issues in a subsequent action. The Supreme Court there stated: “* * * if both the judgment of January 4th and that of March 14th were partial, each disposing of a fraction of the case, then the prior action [i. e.: the instant action] was still pending, and appellant was at liberty to proceed in that action, or in the present action. * * * He had previously filed a cross–complaint in the present action.”

The decision of the Supreme Court in Greenfield v. Mather was handed down August 21, 1939. On December 7, 1939, respondents made a motion in the instant action for entry of a final judgment, nunc pro tunc as of March 14, 1935, which motion was granted; and such a judgment was so entered on December 12, 1939. It is from this judgment that the appeal herein is taken. Appellant contends, among other things, that the entry of the judgment nunc pro tunc was improper in that it constituted an attempt to correct judicial error. In the course of the oral argument upon rehearing of this cause, respondents conceded that the entry of separate, partial judgments in the instant case was a mistake; but respondents plainly indicated by their concession that the entry of such judgments was intentional. This mistake, then, must necessarily be held a judicial error. The Supreme Court in Greenfield v. Mather, supra, appears to have viewed the procedure adopted by the trial court in the instant action as one of judicial error stating: “The erroneous procedure adopted in attempting to make piecemeal disposition of the prior cause was not of appellant's instigation, and he should not be penalized for it. He at no time waived his right to object to the splitting of the action. He contended throughout that he was entitled to test the sufficiency of his third cause of action before an appellate court. To permit a litigant to deprive his adversary of an opportunity for full appeal by erroneously procuring the entry of successive purported partial judgment [sic], and then having appeals from all save the last of said judgments dismissed on the ground that the cause should not have been split would be unfair.”

Since judicial error is virtually conceded, the error is not correctible under Section 473, Code of Civil Procedure, but must be remedied by a motion for a new trial, by appeal, or by a motion under Section 663, Code of Civil Procedure, in the class of cases there specified. 14 Cal.Jur. 1022, and cases cited. Respondents' efforts in procuring entry of a judgment nunc pro tunc in the instant case cannot be placed in any of the foregoing categories. The situation is one in which the trial court did not do something it might have done and should have done, and that it failed to do, not because of clerical error or misprision, but because of error in judgment and as to the applicable law. The subsequent entry by the court of a final judgment nunc pro tunc was “ ‘* * * the attempt by the court, not to correct a clerical misprision, not to supply omitted evidentiary matter, but at a later date to enter a judgment which originally it had never contemplated entering, but which at the time of giving the original judgment it might have caused to be entered.’ ” Albori v. Sykes, 18 Cal.App.2d 619, 622, 65 P.2d 84, 85. The decision of the Supreme Court in Greenfield v. Mather, supra, holding in effect that no final judgment had ever been entered in the instant action, prior to entry of the judgment nunc pro tunc, does not aid respondents. The fact remains that the trial court, at the instance of respondents, attempted to dispose of the case by two erroneous or imperfect judgments. If the court has rendered an imperfect or improper judgment it has no power to remedy such errors by ordering an amendment nunc pro tunc of a proper judgment. Albori v. Sykes, supra, and authorities there cited. The trial court in the instant case therefore erred in entering the judgment here in question.

It is not necessary to pass upon the other points raised.

The order granting entry of judgment nunc pro tunc, being an intermediate ruling of the court, is not appealable. As to the order denying the motion to vacate the judgment, under the settled law of this state an appeal will not lie from such an order if the grounds upon which the moving party sought to have the judgment vacated were available on appeal from the judgment and existed before the entry thereof. Lawson v. Guild, 215 Cal. 378, 381, 10 P.2d 459; Barker v. Ackers, 29 Cal.App.2d 162, 176, 84 P.2d 264. It is obvious that appellants' attempt to appeal from the order denying vacation of the judgment merely constitutes a repetition of their appeal from the judgment. The attempted appeals from the order granting the motion for entry of the final judgment nunc pro tunc and from the order denying the motion to set the said judgment aside are dismissed.

The judgment nunc pro tunc, being void for the reasons above given, is hereby ordered vacated.

DORAN, Justice.

YORK, P. J., and WHITE, J., concurred.