STEVENS v. SUPERIOR COURT IN AND FOR SAN JOAQUIN COUNTY

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District Court of Appeal, Third District, California.

STEVENS et al. v. SUPERIOR COURT IN AND FOR SAN JOAQUIN COUNTY.*

Civ. 5556.

Decided: December 30, 1935

Bronson, Bronson & Slaven, of San Francisco, for petitioners. Gumpert & Mazzera and C. H. Hogan, all of Stockton, for respondents.

The record before us shows that on April 26, 1935, M. Carpino commenced an action in the Superior Court of the State of California, in and for the County of San Joaquin, against the petitioners, to recover damages for and on account of personal injuries alleged to have been suffered by the said M. Carpino as a result of the negligence of the petitioners. On the 7th day of September, 1935, after trial, a judgment in favor of M. Carpino against the petitioners was entered awarding damages to Carpino in the sum of $3,000. On September 11, 1935, M. Carpino filed in said action a notice of intention to move for a new trial. On October 5, 1935, the motion for a new trial was heard and argued before said Superior Court. Following the argument the motion for a new trial was submitted upon written points and authorities thereafter to be filed. On October 26, 1935, M. Carpino filed in the action a waiver as to any issue other than that of damages. On October 28, 1935, the respondent court made and filed its order denying Carpino's motion for a new trial. On October 29, 1935, the respondent court made and filed an order purporting to annul and set aside its previous order denying a new trial to M. Carpino, and purporting to grant a new trial on the issue of damages alone.

The petition is for a writ of prohibition restraining the trial court from proceeding with a new trial. Prohibition is conceded to be a proper remedy if the second order of the trial court is held to be invalid.

Upon the hearing of this cause it developed that the pleadings filed by the petitioners herein failed to set forth copies of the orders actually made and entered by the trial court. It was thereupon stipulated by counsel that certified copies of the respective orders might be furnished, and when furnished, deemed a part of the pleadings in this cause. Certified copies of the orders made by the trial court are now before us, and we set them forth in full, save and except as to the title of the court. The order made and entered by the court on Monday, October 28, 1935, is in the following words and figures:

“Monday, October 28, A. D. 1935.

“Present; Hon. C. W. Miller, Judge.

“M. Carpino, Plaintiff vs. Fred Stevens, Defendant. No. 26887

“The motion for a new trial in said cause having been heretofore argued by counsel, and submitted to the court, the court this day made an order denying plaintiff's motion for a new trial.

“Attest: Eugene D. Graham, Clerk.

“By F. R. Stanley, Deputy Clerk.”

The order entered Tuesday, October 29, 1935, is in the following words and figures:

“Tuesday, October 29th, A. D. 1935.

“Present: Hon. C. W. Miller, Judge.

“M. Carpino, Plaintiff, vs. Fred Stevens and R. G. LeTourneau, Inc., a Corporation, Defendants. No. 26887.

“The court this day on its own motion made an order as follows, to-wit: It is hereby ordered that said order made and entered on the 28th day of October, 1935, denying plaintiff's motion for a new trial be, and the same is hereby vacated, annulled and set aside. And it is further ordered that the motion of plaintiff for a new trial be, and the same is hereby granted upon the issue of damages alone.

“Attest: Eugene D. Graham, Clerk

“By F. R. Stanley, Deputy Clerk.”

We have omitted not only the title of the court but also the certificate of the clerk.

In oral arguments, and also upon briefs filed in this cause, counsel for petitioners and also counsel for the respondent have based their arguments upon the memoranda of opinions filed by the presiding judge of the trial court, apparently overlooking the limitations placed upon a reviewing court confining consideration in such cases to the orders actually made and entered by the trial court. However, we will make a slight reference to the written memoranda of the trial court, not for the purpose of basing any decision thereon, but to illustrate the point that the alleged inadvertence and oversight set forth in the second memoranda has no basis upon which to rest.

After stating in the first memoranda that a new trial would have been granted by reason of erroneous instructions having been given by the court, it is set forth that plaintiff's counsel in effect stated that they desired a new trial upon the sole ground of the insufficiency of the evidence to justify the verdict. The matter was then submitted upon briefs, and the briefs covered both points very thoroughly, and the court would have granted a new trial upon the ground that an erroneous instruction had been given, but for the fact that subsequent to the filing of the briefs in the case, plaintiff had filed therein a waiver of a new trial except as to the question of damages. Upon this point the court then uses the following language: “The evidence at the trial was sharply conflicting as to the extent or permanency of the injury, and the finding of the jury finds ample support in the evidence. In view of the definite waiver by the plaintiff, above referred to, the motion for a new trial will be denied.”

“Thereafter, counsel for plaintiff urged the two grounds above stated for the granting of the motion as made in open court at the hearing, and still urged the granting of the motion upon the issue of damages alone. Thereafter, and on the 26th day of October, 1935, counsel for plaintiff filed herein a written waiver on behalf of the plaintiff, waiving a new trial in said action as to any issue other than that of damages. The court in reading said waiver, by oversight and accident, inadvertently concluded, and made the mistake of concluding, that the plaintiff thereby waived all grounds or reasons which he had theretofore urged for a new trial, except the ground or reason of the insufficiency of the evidence to justify the verdict, and that by reason of such oversight, neglect, accident and mistake in the reading of said waiver, and in the conclusion as to its effect, the court, on the 28th day of October, 1935, inadvertently and improvidently made and caused to be entered in said matter its order denying plaintiff's motion for a new trial, at the same time expressing its opinion that the plaintiff is entitled to a new trial, and that the court would have granted a new trial upon the ground that an erroneous instruction had been given except for the waiver filed by the plaintiff.

“Upon a further reading and consideration of said waiver, it clearly appears to the court that the plaintiff did not, by such waiver, waive any ground or reason which he had previously urged for a new trial herein and is therefore entitled to a new trial upon the ground and for the reason that there was error in matters of law in giving a prejudicially erroneous instruction at the request of the defendants.

“In view of said oversight, neglect, accident and mistake which led to the inadvertent and improvident making and entry of said order, and in the interests of justice, it is hereby ordered that said order made and entered on the 28th day of October, 1935, be and is hereby vacated, annulled and set aside. And it is further ordered that the motion of plaintiff for a new trial be, and the same is hereby granted upon the issue of damages alone.”

A setting forth of the waiver filed by M. Carpino shows conclusively that the court did not either misconstrue, overlook, or inadvertently arrive at an incorrect determination as to the effect of the waiver filed by M. Carpino. The waiver so filed is in the following words and figures, to wit (omitting the title of the court and cause):

“Waiver of New Trial as to Any Issue Other Than That of Damages

“The plaintiff in the above entitled action hereby waives a new trial in said action as to any issue other than that of damages.

“Dated: October 26, 1935.

“Gumpert & Mazzera

“Attorneys for Plaintiff.”

The waiver did expressly waive any ground for new trial other than that of the issue of damages. The language contained in the memoranda of opinion dated the 29th day of October, 1935, alleging that the court by inadvertence misconstrued the waiver, is thus shown to be a misapprehension, and that there was no basis for the alleged inadvertence of the entry of judgment. The memoranda first filed sets forth a denial of a new trial on the grounds of damages, setting forth that the trial was sharply conflicting, and that the finding of the jury had ample support therein.

The ground for granting a new trial on the alleged errors of the court in giving instructions did not enter into the case. The only questions presented to the court for consideration prior to the making of the first order was whether M. Carpino should have been granted a new trial on the question of damages, and that is the sole ground upon which the second order purporting to grant a new trial was based. As there was no mistake in relation to the error which preceded the entry of the first order denying a new trial, the question of inadvertence, neglect, etc., finds no place, and does not support the second order.

Irrespective of what we have said, as shown by memoranda of opinions of the trial court in consideration of this cause, we are limited to the actual orders made by the trial court, as shown by the certified copies thereof. We do not question the powers of a trial court to correct its orders so that they shall set forth clearly and distinctly the purpose and intent of the court at the time of directing the entry of the order. There is a clear line of demarkation, however, between correcting an order which has not been entered as the court intended and the annulling and setting aside of a prior order by a subsequent order when the prior order has been made in such manner as to express the purpose and intent of the court at the time of the directing of the entry of the order and its actual order. A number of cases have been called to our attention by the respondent, but a review of them shows a state of facts wholly dissimilar to those presented in this cause.

In the case of Wiggin v. Superior Court, 68 Cal. 398, 9 P. 646, 647, it appears that upon the application of counsel for the heirs of the deceased the court made an order setting aside and vacating the decree of final discharge, reciting therein that such decree of final discharge was entered and made inadvertently and ex parte, and further ordering that the application of petitioner for final discharge be heard January 28, 1885. Thereafter, and on the 19th day of May, 1885, the court issued an order for petitioner to show cause why he should not pay money ordered to be distributed to the heirs, etc. In the consideration of that case the court in its opinion said: “As this is not an appeal from the order setting aside the decree of final discharge, but a collateral attack thereon, we must assume as true the statements contained in the order, which are that the decree of final discharge of the petitioner was made ‘inadvertently and ex parte.”’ The second order entered by the court in this cause, as shown by the language thereof, contains no reference that a prior order was made inadvertently and ex parte. From which it follows that the record is entirely silent as to questions which we can consider and base a conclusion upon that the first order was made in any such manner.

In Livesay v. Deibert, 3 Cal.App. (2d) 140, 39 P.(2d) 466, the second order of the court entered nunc pro tunc was simply for the purpose of correcting a previous order, showing the grounds upon which the new trial was granted, which had been omitted by the clerk from the order actually entered.

In Lauchere v. Lambert, 210 Cal. 274, 291 P. 412, 414, the court granted a motion for new trial on the ground of the insufficiency of the evidence. It appears from the opinion in that case that the trial court, in open court, stated that the granting of a new trial was based upon the insufficiency of the evidence, and it further appears that the clerk failed to set forth in the orders actually entered the grounds upon which a new trial was granted. It was held within the power of the trial court to correct the clerical mistake. The court, in Lambert Case, quoted from the case of Fay v. Stubenrauch, 141 Cal. 573, 75 P. 174, as follows: “Nor is the right of the lower court to amend suspended or impeded by an appeal where an amendment does not affect any substantial rights of the appellant, and consists of the correction of a clerical mistake appearing upon the face of the record.”

In Burbank v. Continental Life Ins. Co., 2 Cal.App.(2d) 664, 38 P.(2d) 451, 452, we find an excellent example of the entry of an order so as to lay the grounds for consideration by an appellate court. We set it forth in full, as follows: “And in its final order the court declared: ‘It appearing to said court that the said Minute Order (of dismissal) was the result of, and due entirely to, (1) the inadvertence, mistake and excusable neglect of plaintiff and his counsel with reference particularly to the submission of the matter of the original motion and the filing of additional affidavits in connection therewith, all as more particularly appears in the affidavit of said plaintiff and said counsel and others on file herein, all of which is, in the opinion of the court, entirely excusable, and the court so finds; and (2) the court may have inadvertently submitted and decided said motion before plaintiff has an opportunity to file additional affidavits, contrary to the understanding of said counsel and plaintiff; and it now appearing that an injustice would be done said plaintiff if the said Minute Order is allowed to stand, and that the interests of justice would be subserved by a vacation of said Minute Order, and the court believing that it should, in the exercise of its inherent and implied powers vacate said Order, and good cause otherwise appearing therefor: It is hereby ordered, adjudged and decreed that the said Minute Order be, and the same is hereby, recalled, vacated and annulled for all intents and purposes as if the same had never been made, and the original motion of defendant to dismiss said cause is hereby set for hearing for January 23, 1933.”’

The proceeding appears to have been had under section 473 of the Code of Civil Procedure.

In King v. Emerson, 110 Cal.App. 414, 288 P. 1099, 294 P. 768, the court granted a new trial on the ground of insufficiency of the evidence, and the question of entering the order failed to set forth that fact. This court held that it was within the jurisdiction of the trial court to amend its record so that it might speak the truth and show exactly the grounds upon which a new trial was granted.

The respondent also calls our attention to the case of Watkins v. McCartney, 70 Cal. App. 137, 232 P. 982. That case presents a situation where different judges of the same court entered different orders, and is readily distinguishable from the circumstances here presented. While not considered in the opinion in that case, the facts we think are sufficient to show want of jurisdiction for the orders made by the second judge.

That we are confined to the language of the actual orders made by the trial court in the decision of this cause, and not upon anything which does not appear in said orders, we cite the following cases:

In Newman v. Overland Pacific Ry. Co., 132 Cal. 73, 64 P. 110, 111, we find the following (after stating what the court might consider), to wit: “This rule of procedure is not affected by the fact that at the time of making the order the court files an opinion in support of its action, wherein it discusses one or more of the grounds presented. The order which is entered in the minutes is the only record of the court's actions, and is to be measured by its terms, and not by the reasons which the court may give for it.”

In Whitney v. Northwestern Pacific Ry. Co., 39 Cal.App. 139, 178 P. 326, 327, the court had before it the question of what it might consider in relation to the orders of the trial court, and used the following language: “The trial court disposed of this motion by making a general order granting the same. The appellant urges that this order should be considered as made upon the sole ground that the evidence showed deceased guilty of contributory negligence as a matter of law which would prevent a recovery; and in support of this claim, it is alleged in appellant's brief that at the time the order was made a memorandum was given to the clerk stating such ground for the order. No such memorandum is a part of the record, and therefore cannot be considered by this court. It has, however, been repeatedly held that any limitation of such a general order, to be effectual, must be specified in the order. The order of the court entered upon its minutes is the only evidence of the action of the court in granting the new trial, and such order is to be measured by its terms, and not by the reasons which the court may give for it. Ben Lomond Wine Co. v. Sladky, 141 Cal. 619, 75 P. 332; Newman v. Overland Pacific Ry. Co., 132 Cal. 73, 64 P. 110; Weisser v. Southern Pacific Ry. Co., 148 Cal. 426, 83 P. 439, 7 Ann.Cas. 636.”

In the case of Weisser v. Southern Pacific Ry. Co., 148 Cal. 426, 83 P. 439, 7 Ann.Cas. 636, it was attempted to be shown by a letter in contradistinction to the actual order, the intent and purpose of the trial court. The opinion on that question is as follows: “Even if the same had been written and filed at the time of the granting of the new trial, it could not have operated to limit the effect of the general order entered on the minutes of the court, which order so entered is, under the decisions, the only record of the court's action. Any limitation, to be effectual, must be specified in the order.”

In Ben Lomond Wine Co. v. Sladky, 141 Cal. 619, 75 P. 332, 333, the court had before it an opinion filed by the trial court, and also of the order of the court actually entered upon its records. It is there said: “This question would appear to be settled by the decision of this court in Newman v. Overland Railway Company, 132 Cal. 73, 64 P. 110, wherein it was held that, where there is an order granting a new trial, entered upon the minutes of the court, and also an opinion filed showing the reasons for the granting of the motion, and concluding with the words, ‘the motion for a new trial is granted,’ the order entered on the minutes is the only record of the court's action, and is to be measured by its terms, and not by the reasons which the court may give for it.”

The case of Egan v. Egan, 90 Cal. 15, 27 P. 22, called to our attention, has to do only with the correction of clerical errors.

In Bloomquist v. Haley, 204 Cal. 258, 268 P. 364, 365, it appears that after entering an order the court made an attempt to vacate the previous order and enter a subsequent one. The court said: “The order is general in its terms and the record contains nothing in support of this assertion. Without doubt, the trial court exhausted its jurisdiction by granting the new trial, and the order made in attempting to vacate that order was void. Holtum v. Greif, 144 Cal. 521, 524, 78 P. 11, and cases there cited; Dorland v. Cunningham, 66 Cal. 484, 6 P. 135. No attempt was made to set the order aside upon a proper showing that it had been entered prematurely, or by inadvertence, as was done in Odd Fellows' Savings Bank v. Deuprey, 66 Cal. 168, 4 P. 1173, or to correct it, as in Garoutte v. Haley, 104 Cal. 497, 38 P. 194. The trial court having exhausted its jurisdiction by granting a new trial, its subsequent order in vacating its order granting a new trial and in modifying the judgment previously rendered was without authority and was for that reason void.” See, also, Holtum v. Greif, 144 Cal. 521, on page 525, 78 P. 11, and cases cited.

If the record shows that the order has been prematurely made or inadvertently made, the power of the court exists to correct the error. This is shown by the following language found in the case of Odd Fellows' Savings Bank v. Deuprey, 66 Cal. 168, 4 P. 1173, 1174, to wit: “An order granting or refusing a new trial, made after the regular submission of a motion for that purpose, is reviewable only on appeal. Coombs v. Hibberd, 43 Cal. 452, 453; Waggenheim v. Hook, 35 Cal. 216; Nichols v. Dunphy, 10 Pac. C. Law J. 193. But it is otherwise where such an order has been inadvertently or prematurely made. If made, for instance, before the statement of the case or bill of exceptions, upon which it was to be made, has been settled, engrossed, and certified, and before the motion has been regularly submitted, the jurisdiction to hear and decide the motion was not called into exercise, the order would not be made in the regular exercise of the jurisdiction of the court, and, being improvidently made, it would be the duty of the court to set it aside. Morris v. De Celis, 41 Cal. 331; Hall v. Polack, 42 Cal. 218; Coombs v. Hibberd, supra; and Nichols v. Dunphy, supra. Here, however, the power of the court to hear and decide the motion for a new trial was regularly put in motion, and the order of the court in the decision of the motion exhausted its power over it. The court became functus officii.”

That the opinion of a trial court is no part of the record and cannot be considered independently of the orders actually made and entered by the court, see, also, 2 California Jurisprudence, p. 488. The order entered by the trial court on the 29th day of October, 1935, states no grounds for the making of the order. It simply purports to annul the previous order denying a new trial and granting a new trial on the issue of damages alone. Even if we were permitted to go outside of the record and consider the opinion of the court, it would have to be held that this particular ground for granting a new trial had been considered by the trial court and previously denied, and as we have said, no inadvertence of the trial court affected the order actually made. The orders of the court, however, actually made, not showing any legal reason for the entry of the order dated October 29, 1935, it must be held that the court exhausted its jurisdiction, and that such order is absolutely void.

The petition for a writ of prohibition is granted.

Mr. Justice PLUMMER delivered the opinion of the court.

We concur: PULLEN, P. J.; THOMPSON, J.