SHRIMPTON ET AL v. SUPERIOR COURT OF LOS ANGELES COUNTY

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District Court of Appeal, Second District, Division 2, California.

SHRIMPTON ET AL. v. SUPERIOR COURT OF LOS ANGELES COUNTY.

Civ. 13861.

Decided: December 01, 1942

J. H. O'Connor, Co. Counsel, and Beach Vasey, Deputy Co. Counsel, both of Los Angeles, for petitioners. Courtney A. Teel, of Los Angeles, for respondent.

A writ of certiorari was issued by this court to review the action of the respondent court in vacating and setting aside a judgment of dismissal it had previously ordered in the case of Acker v. Baldwin, et al., Superior Court, Los Angeles County, No. 412571.

These are the facts:

February 26, 1937, there was filed in respondent court an action entitled Acker v. Baldwin, Los Angeles Superior Court, No. 412571. In such action petitioners were named among others as defendants. After trial before the court without a jury a judgment was entered in favor of plaintiff in said action April 17, 1942, and notice of entry of said judgment was served on defendants April 23, 1942. May 1, 1942, petitioner served a notice of intention to move for a new trial, stating as grounds therefor:

(1) Insufficiency of the evidence to justify the decision and that the decision was against law;

(2) Errors in law occurring at the trial and excepted to by defendants in said action.

May 26, 1942, the matter was argued before respondent court and submitted. June 22, 1942, respondent court made an order striking the findings of fact and conclusions of law and dismissing the action. Notice of the ruling on the motion for a new trial was served on petitioners herein (defendants in the above mentioned action) July 7, 1942. On July 7, 1942, pursuant to the order of June 22, 1942, a judgment of dismissal of the above mentioned action was entered. August 6, 1942, plaintiff in the aforementioned action served upon defendants therein (petitioners here) a notice of motion to vacate and set aside the order of June 22, 1942, and the judgment of dismissal entered July 7, 1942, “upon the ground that the said order of vacation and dismissal [was] void and [was] wholly unauthorized in law and [was] of no force or effect and that said order [was] in excess of the jurisdiction of” respondent court. August 19, 1942, respondent granted the motion to vacate the order of June 22, 1942, and the judgment of dismissal entered July 7, 1942.

This is the sole question necessary for us to determine:

Was the order of June 22, 1942, void on is face and was the order of August 19, 1942, valid?

This question must be answered in the affirmative and is governed by the following pertinent rules of law:

(1) On a motion for a new trial the court is without jurisdiction to make any order or grant any affirmative relief upon a ground not provided by statute (Manufacturers' Finance Corporation v. Pacific Wholesale Radio, Inc., 130 Cal.App. 239, 242, 19 P.2d 1013; see § 657, Code Civ.Proc.; 20 Cal.Jur. (1925) 41, § 19; 8 Cal.Jur. Ten–year Supp. (1936) 505, § 19, note 12).

(2) An order which is void on the face of the record may be set aside at any time by the court that made it upon the ground that it is void (Luckenbach v. Krempel, 188 Cal. 175, 176, 204 P. 591; Dolan v. Superior Court, 47 Cal.App. 235, 241, 190 P. 469).

Applying the foregoing rules to the facts of the instant case, it is apparent that respondent court's power in ruling upon the motion for a new trial was limited to the grounds specified in section 657 of the Code of Civil Procedure and the extent of the relief it could grant was limited by the provisions of section 662 of the Code of Civil Procedure. Section 662 of the Code of Civil Procedure provides that in ruling upon a motion for a new trial, the court may “change or add to the findings, modify the judgment, in whole or in part, vacate the judgment, in whole or in part, and grant a new trial on all or part of the issues, or, in lieu of granting a new trial, may vacate and set aside the findings and judgment and reopen the case for further proceedings and the introduction of additional evidence with the same effect as if the case had been reopened after the submission thereof and before findings had been filed or judgment rendered.” (Italics added.) It is therefore clear that under the provisions of section 662 the trial court may follow one of four courses in ruling upon a motion for a new trial:

(1) It may deny the motion for a new trial and add to the findings and/or modify the judgment in whole or in part;

(2) It may vacate the judgment in whole or in part and grant a new trial on all or part of the issues;

(3) In lieu of granting a new trial it may vacate and set aside the findings and judgment and reopen the case for further proceedings; or

(4) It may deny the motion.

There is nothing in the section which authorizes the court to vacate the judgment and dismiss the action, as was done in the instant case. Neither is there any other code section or case which authorizes the procedure followed by the trial court. Since the order of June 22, 1942, was thus void on its face under the second rule above stated, respondent court was authorized to make the order of August 19, 1942, setting aside its void order.

For the foregoing reasons it is ordered that the proceedings of August 19, 1942, be affirmed and the writ of certiorari heretofore issued be discharged.

McCOMB, Justice.

MOORE, P. J., and W. J. WOOD, J., concurred.

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