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


Civ. 13266.

Decided: April 15, 1942

Marcel E. Cerf, Robinson & Leland and Gavin McNab, Schmulowitz, Aikins & Wyman, all of San Francisco, for 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. On February 18, 1935, the action proceeded to trial upon the first and second counts of the complaint. At the conclusion of the trial the court found against plaintiff and in favor of defendant Anna Inez Mather. Among other facts, the court found that it was true that the plaintiff assigned and transferred to the defendant Anna Inez Mather a one–half interest in his title to the approved claim against the estate in question. The trial court also found generally that plaintiff and defendant were intermarried on December 18, 1925, separated June 10, 1933, divided their property June 16, 1933; and an interlocutory judgment of divorce of said marriage was entered August 18, 1933; that at the time of the marriage of plaintiff and said defendant each was possessed of separate property, and during their marriage each contributed to their community property; that at the time of their separation the property of plaintiff and defendant was intermingled and consisted of their separate, community and joint property; that at the time plaintiff and said defendant divided their property, June 16, 1933, such intermingled property was distributed between them by mutual consent, without fraud, undue influence or mistake on the part of either party, and such distribution was then and there wholly executed and completed. The trial court thereupon concluded that plaintiff should take nothing by reason of his complaint, that the answering defendants should have their costs, and that a temporary injunction theretofore allowed in the action should be and was dissolved. This injunction restrained the estate in question and the administrators thereof from paying any further moneys to the defendant Anna Inez Mather under the assignment made by plaintiff of the one–half interest in his claim against the said estate. The findings of fact and conclusions of law were filed March 12, 1935. Judgment was then entered March 14, 1935. However, this last document omits any reference to the previous disposition of the third count upon demurrer and on its face purports to be merely a judgment entered upon the findings and conclusions of the court at the close of the trial of the first and second counts of the complaint. Notice of appeal from this purported judgment was filed by plaintiff on March 15, 1935. The record reveals that the “purported” appeal from the “judgment” on the third count was dismissed by the Supreme Court on March 17, 1936; and that the appeal from the “judgment” on the first and second counts was dismissed by the same court on September 10, 1935. On December 7, 1939, defendants Anna Inez Mather and Lessie G. Williams made a motion 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, as well as from the order granting the motion to enter such judgment and from the order denying the motion to set the said judgment aside.

Appellants contend that the motion for entry of the judgment nunc pro tunc was made upon insufficient notice; that the judgment was improper because the judge who ordered the same entered was not even on the bench at the time the case was tried, and made new findings and changed the findings and conclusions previously rendered by the trial judge; that a nunc pro tunc entry of judgment may not be used to correct an erroneous judgment, or to affect rights acquired in the interim; that neither the court nor the clerk may enter a judgment which does not conform to the order for judgment made by the trial court; that, moreover, the appeal taken from the “judgment” upon the demurrer sustained as to the third count stayed all further proceedings in the trial court, and proceedings thereafter taken in the trial court during the pendency of that appeal are void. Appellants also contend that the trial court erred in sustaining the demurrer to the amended third count of the complaint.

The status of the two judgments, upon the third and upon the first and second counts, has already been considered by the Supreme Court. Mather v. Mather, 5 Cal.2d 617, 55 P.2d 1174; Greenfield v. Mather, 14 Cal.2d 228, 93 P.2d 100. These two decisions hold in substance that the entry of such separate judgments constituted an attempt to try piecemeal a single and unseverable cause; that the judgments in question were partial, not final and hence nonappealable. It is apparent, therefore, that no final judgment was ever entered in the action, though the issues including that upon demurrer, appear by the record to have been disposed of by the rulings and findings of the trial court.

By the final judgment, entered upon motion of the above named defendants, it was adjudged that plaintiff take nothing by his complaint or any of the counts thereof; that the injunction theretofore issued should be dissolved as of February 27, 1935; that the answering defendants Anna Inez Mather and Lessie G. Williams have their costs; and that the Greenfield estate and its administrators pay to Anna Inez Mather the sum of $12,549.60, admittedly in their hands subject to the order and direction of the court. Examination of the findings originally made by the trial court reveals that the final judgment entered nunc pro tunc is substantially in accord therewith. Appellants complain that the final judgment is void because it provides for the payment to Anna Inez Mather of the sum alleged to be in the hands of the administrators of the Greenfield estate. But the answer of these administrators placed this sum at the disposal of the court; and the court expressly found that plaintiff had assigned and transferred to Anna Inez Mather a one–half interest in his title to the claim against the estate. The recitals set forth in the final judgment reveal no material deviation from the original findings of the trial court. Appellants' contentions in this respect are without merit. Likewise without merit are the contentions with respect to the changes made in the conclusions reached. “Where findings are filed, which constitutes the rendition of judgment, it has been repeatedly held that the court retains power to amend or change the conclusions of law so as to point to a different judgment, and to enter a judgment different from that first announced, and that this power continues until the entry of the judgment, and such change may be made by a judge other than the one who tried the cause. Until the judgment is entered the trial court retains complete jurisdiction of the case, of which it cannot be divested by any unauthorized appeal, and the mere fact that it has been affirmed on such an appeal does not prevent the subsequent entry of another and different judgment, since no jurisdiction was acquired by the premature appeal and the trial court still retained the power to make a different judgment.” 14 Cal.Jur. 938, and cases cited. (Italics added.) The foregoing quotation serves to dispose of practically all of appellants' contentions regarding both the entry of the final judgment and a stay of proceedings claimed to have been created by the premature appeal taken from the purported judgment upon demurrer to the third count. Authority of the court to enter judgment nunc pro tunc as in the instant case is established in Kowalsky v. Nicholson, 23 Cal.App. 160, 137 P. 607, and Haug v. Superior Court, 2 Cal.App.2d 547, 37 P.2d 1048. The failure of the court to have included all the issues in the judgment entered at the conclusion of the trial of the first and second counts appears from the record to have been one of clerical mistake or misprision only and not one of judicial error. See Bank of America, etc., Ass'n, v. Radford, 7 Cal.2d 205, 60 P.2d 119. The power to enter judgment nunc pro tunc under circumstances such as here presented is inherent in the courts. Norton v. City of Pomona, 5 Cal.2d 54, 62, 53 P.2d 952; In re Pillsbury's Estate, 175 Cal. 454, 461, 166 P. 11, 3 A.L.R. 1396. And such power may be exercised by the court at any time, on its own motion or that of a party with or without notice. E. Clemens Horst Co. v. Federal Mutual Liability Insurance Co., 22 Cal.App.2d 548, 71 P.2d 599. Appellants' contentions as to insufficiency of the notice of the motion for entry of the final judgment are therefore immaterial.

However, the court found that Anna Inez Mather had but a one–half interest in the claim against the Greenfield estate. That being so, Anna Inez Mather should be entitled to only one–half of any moneys in the hands of the administrators for payment of the claim, in the absence of anything in the record to the contrary. The record does not show that the entire sum was being held for Anna Inez Mather. The answer of the estate merely set forth that the sum was being held on account of the claim itself. It appears, therefore, that the final judgment should be corrected to accord with the finding as to Anna Inez Mather's one–half interest. That Anna Inez Mather was entitled to but one–half of any sums payable by the estate on the claim is further borne out by the indenture attached as an exhibit to plaintiff's complaint, wherein it is stated that “one–half (1/2) of all sums becoming payable to said grantor from said estate, both by way of principal and interest, shall hereafter be payable to said Dorothy Devore Mather.”

That the amount of the costs awarded in the final judgment differs from that previously set forth in the partial judgment, entered after trial on the first and second counts, is of no concern here. The question of costs is not properly before this court, and there is no basis for a decision thereon. It is impossible to ascertain from the record what the correct amount of costs should be, or that the amount thereof as stated in the final judgment is not correct.

The fact that other and further proceedings appear to have been taken in another court before entry of the final judgment in the instant case did not serve to deprive the trial court of its power to enter judgment upon the findings made herein, and upon the ruling on demurrer.

Appellants' contention as to the sufficiency of the third count of the complaint as amended is without substantial foundation. The agreement which forms the basis of that count is alleged by plaintiff to have been entered into on June 16, 1933. Upon the face of the complaint and the third count thereof it also appears that the defendant Anna Inez Mather obtained an interlocutory decree of divorce from plaintiff in the State of California on August 16, 1933. It follows that when the agreement concerning the property was made the parties were residents of California, and the situs of the property involved was therefore California. The agreement was patently a property settlement, and, as such, vitally concerned the marital relationship of the parties. Under the circumstances, the applicable law should be that of the situs of the property and the domicil of the parties (see 5 Cal.Jur. 448 and 15 C.J.S., Conflict of Laws, § 16, p. 923); and the wife's capacity to make such an agreement should not be affected by the law of the place where the contract was made, where the parties were obviously transients. Moreover to apply the law of Hawaii, assuming the contract to have been invalid thereunder at the time, would violate the established policy of the State of California regarding the right of married women to contract with their husbands as to property settlements. The policy of this state regarding the relationship of husband and wife domiciled therein forms an integral part of any such agreement. (See 15 C.J.S., Conflict of Laws, § 16, pp. 920, 921, as to contracts where the lex loci contractus is contrary to the public policy of the forum.) The trial court did not err in sustaining the demurrer to the third amended third count, and did not abuse its discretion in refusing to allow plaintiff to make further amendment, since it is plain that no cause of action would lie on the basis of the law of Hawaii. It is also doubtful, in any event, that the third count in question set forth sufficient grounds for an action in rescission under the Civil Code (see §§ 1689 and 3406, Civ.Code; also § 3407 thereof), though this need not form the basis of the decision here.

Appellants are not correct in contending that the sufficiency of the third count was established by the decision in Greenfield v. Mather, supra. The Supreme Court in that case did not pass upon the sufficiency of plaintiff's cause of action as stated in the third count. The court merely held that there was no final judgment in the action in Los Angeles County and hence there was no valid plea in bar on that ground in an action brought in the City and County of San Francisco.

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 judgment appealed from is hereby modified to provide that the estate of Greenfield, Edna Greenfield, as administratrix, and Herman Wobber and Hugo D. Keil, as administrators, thereof, do pay to said Anna Inez Mather, otherwise known as Dorothy Devore Mather, one–half of the sum of $12,549.60, admittedly in their hands subject to the order and direction of the court in this action; and as so modified the said judgment is affirmed. 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.

DORAN, Justice.

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

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