CROSS v. TUSTIN

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

CROSS v. TUSTIN et al.

Civ. 14801.

Decided: May 09, 1951

Nancy Cross, Stanford, in pro per. Howard W. Campen, County Counsel, Harry C. Nail, Jr. Asst. County Counsel, Santa Clara County, San Jose, for respondents.

Appellant has petitioned this court for a rehearing of our order dismissing her appeal. The original order was made from the bench without opinion. Further consideration has only served to satisfy us that our order of dismissal was correct and we take this opportunity to state the reasons for our action.

Appellant sought a writ of mandamus in the Superior Court of Santa Clara County, which was denied. There was no reporter present at the proceedings. Since appellant desired to appeal the judgment, it became necessary to prepare a narrative statement of the proceedings. The parties were in sharp disagreement as to what had occurred at the hearing, and hence what should be included in the narrative statement upon which the appeal would be based. Judge Del Mutolo of the above court then certified a Settled Statement on Appeal.

Appellant subsequently appeared before this court, petitioning for Settlement of Narrative Statement. This petition was denied, rehearing denied, and petition for hearing denied. Cross v. Tustin, 96 Cal.App.2d 207, 214 P.2d 565.

Appellant then moved the Superior Court of Santa Clara County to impeach and vacate the certified settled statement. She alleged deceit and fraud on the part of respondents' counsel, passion and prejudice of Judge Del Mutolo, and collusion between the judge and counsel for respondents. Judge Salsman heard this motion and the subsequent proceedings. After a hearing, appellant's motion to impeach and vacate was denied. An oral motion to amend the settled statement was also denied. Appellant than moved for a new trial on each of the above two motions. These motions for new trials were dismissed. An appeal was taken from all four of the orders mentioned in this paragraph. It is this appeal which respondents now move to dismiss.

Respondents contend: (1) An order settling a statement is not an appealable order; (2) An order denying a motion to vacate or amend an order settling statement is not appealable; and (3) An appeal does not lie from orders denying new trials on non-appealable orders.

The primary fact is that an order settling a statement on appeal is not an appealable order.

‘When appellant cannot or does not want to avail himself of this method (bringing up of reporter's transcript) of preparing the record on appeal, either because a reporter was not present at the proceedings or for other reasons, and when he fails to convince the trial judge that his statement accurately reflects the proceedings in question, the action of the trial judge, who heard and tried the case, must be regarded as final.’ Burns v. Brown, 27 Cal.2d 631, 636, 166 P.2d 1, 4.

‘An appeal may be taken from any special order made after final judgment Code of Civil Procedure, section 963. But the orders after judgment which are appealable under this section are only those which affect the final judgment in some manner or bear some relation to it either by way of enforcing it or staying its execution. Lake v. Harris, 198 Cal. 85, 89, 243 P. 417; Imperial Beverage Co. v. Superior Court, 24 Cal.2d 627, 150 P.2d 881. The test is the same with relation to orders made in the preparation of records on appeal. An order terminating proceedings for the preparation of a record has the same effect as an affirmance of the judgment or dismissal of the appeal, and is appealable (Wood v. Peterson Farms Co., 214 Cal. 94, 3 P.2d 922; W. J. Somers Co. v. Smith, 45 Cal.App. 703, 188 P. 311), but an order denying a motion to terminate such proceedings is not appealable (Hohnemann v. Pacific Gas & Electric Co., 29 Cal.App.2d 551, 85 P.2d 151; Landreth v. Ducommun, 9 Cal.App.2d 136, 48 P.2d 984); nor is an order relieving a party from default in the preparation of a record on appeal. McWilliams v. Hudson, 98 Cal.App. 185, 276 P. 598, 277 P. 529; Buis v. Lindauer Corp., 116 Cal.App. 558, 3 P.2d 18. * * *

‘There is nothing in the Rules on Appeal which places any new limitation upon the discretionary powers of the trial judge in the settlement of records on appeal and nothing which would bring the order here under consideration into the class of orders after judgment from which appeals may be taken.

‘The order settling the statement does not in any manner affect the judgment or its enforcement; it is not appealable, and the appeal from the order is dismissed.’ Lande v. Southern California Freight Lines, 78 Cal.App.2d 417, 419–421, 177 P.2d 936, 937.

As pointed out in the opinion from which the last quotation is taken an order terminating proceedings for the preparation of a record has been held appealable because it ‘has the same effect as an affirmance of the judgment’, but any order which results in the settlement of a record is not appealable because it does not affect the judgment ‘either by way of enforcing it or staying its execution.’

This brings us to respondents' second point, i. e., if the original order is non-appealable, an order refusing to vacate it is also non-appealable. That this is a well-settled rule in California is incontrovertible. Litvinuk v. Litvinuk, 27 Cal.2d 38, 43, 162 P.2d 8; 2 Cal.Jur. 164, secs. 30 and 31, et seq., and cases cited therein; 1 Cal.Jur. 10 yr. supp. 294, 1 Cal.Jur.Supp. (1942 pocket part) 103, 1 Cal.Jur.Supp. (1950 pocket part) 136, and cases cited therein.

To escape the scope of the rule that an order settling a statement is non-appealable, and a non-appealable order cannot be appealed indirectly by the device of appealing from the denial of a motion to impeach and vacate, or amend such order, appellant argues as follows: That these appeals are from denials of motions brought under C.C.P. 1916 and 473, and that the rule is ‘* * * that whenever secs. 1916 or 473 of the Code of Civil Procedure—or the ground of fraud or mistake even without specific reference to statute—have been properly invoked on motion to vacate and set aside or amend a record or order * * * the grounds of which motion were not reviewable on appeal from the judgment or other order, and where an order in any action to which C.C.P. 963(2) applies denying the motion to vacate a record was entered after trial of the motion on its merits in the trial court, appeal has been uniformly accepted in California.’

In all the cases appellant cites for this proposition the orders appealed from were denials of motions to vacate or amend orders which were themselves appealable. Stein v. Simpson, 96 Cal.App.2d 642, 644, 216 P.2d 117, appeal from the denial of a motion to amend a special order after judgment, itself appealable; Friedrich v. Roland, 95 Cal.App.2d 543, 551–552, 213 P.2d 423, denial of motion to be relieved from default judgment; Winslow v. Harold G. Ferguson Corp., 25 Cal.2d 274, 283, 153 P.2d 714, appeal from denial of motion to vacate an appealable order—which had been appealed, but the appeal abandoned; Grief v. Dullea, 66 Cal.App.2d 986, 992–993, 153 P.2d 581, denial of motion to set aside judgment by one not a party of record but injuriously affected by the judgment which denial may be appealed by such party; Stewart v. Stewart, 32 Cal.App.2d 148, 89 P.2d 404, dealing with the effect of a foreign divorce decree, not pertinent; Ratliff v. Ratliff, 100 Cal.App. 556, 557, 280 P. 554, appeal from denial of a motion to vacate a judgment; Sharp v. Eagle Lake Lumber Co., 60 Cal.App. 386, 391–392, 212 P. 933, appeal from denial of of motion to vacate judgment; W. J. Somers Co. v. Smith, 45 Cal.App. 703, 705–706, 188 P. 311, appeal from denial of motion to set aside an order refusing to certify a record on appeal, which order could have been reviewed on appeal or mandamus, depending on the state of the record. All that those cases illustrate is that in certain cases an appeal will lie from the denial of a motion to vacate previous judgments or orders when those judgments or orders were themselves appealable.

The same distinction is true of the cases cited by appellant in support of the proposition that: ‘Appeal will lie where the circumstances are such that appeal with the record available on appeal from the judgment would be vain for the lack of a record showing the rights of the aggrieved party.’ Again, the distinguishing feature of all of the cases cited by appellant for this proposition is that the orders appealed from were denials of motions to vacate orders which were themselves appealable, as follows: Valentin v. Valentin, 93 Cal.App.2d 588, 592, 209 P.2d 654, appeal from order denying motion to set aside an order for appraisement of property; Johnson v. Sun Realty Co., 138 Cal.App. 296, 298–299, 32 P.2d 393, appeal from order refusing to vacate a judgment; Ratliff v. Ratliff, 100 Cal.App. 556, 557, 280 P. 554, appeal from order denying motion to set aside default judgment; Hilliker v. Board of Trustees, 91 Cal.App. 521, 526, 267 P. 367, appeal from order denying motion to set aside and amend judgment which was also appealed from; In re Yoder, 199 Cal. 699, 702–703, 251 P. 205, appeal from order denying motion under C.C.P. 473 to set aside an order of adoption on the ground of fraud.

In this connection appellant also cites: Airline Transport Carriers, Inc., v. Batchelor, 102 Cal.App.2d 241, 227 P.2d 480. This was a case where a ‘clerk's default’ was entered, and a default judgment subsequently filed. Defendant moved to set aside the default judgment, which motion was granted. Subsequently the court ordered defendant to show cause why judgment should not be entered against him as the ‘clerk's default’ had not been set aside. Defendant's motion to correct the minute order was denied and judgment entered against him. This court held the action of the trial court to be error, the circumstances appearing to be such that all parties knew that defendant was seeking complete relief from default in the motion to set aside the default judgment which the trial court had granted. We cannot see the relevancy of this case to the instant motion to dismiss, or to the proposition advanced by appellant.

In all of the above cases the general rule is clearly set out that an appeal does not lie from an order denying a motion to vacate a judgment or order, where the motion calls upon the court only to repeat or overrule the former ruling on the same facts. Such an appeal would only duplicate the review which could be had on appeal from the original order. The above cases, however, are all illustrative of one well-defined exception that an appeal will lie when ‘an appeal from the first order would be vain for lack of a record showing the rights of the aggrieved party.’ See 2 Cal.Jur. 164, sec. 30, et seq., and cases cited therein.

Appellant's remaining contention that the orders appealed from are appealable is simply that an appeal will lie when the order appealed from is on a motion under Code Civ.Proc. secs. 473 or 1916 to correct or impeach a judicial record, if the motion has been brought on grounds or tried with evidence not available in the record on appeal from the judgment or order. For this proposition she cites W. J. Somers Co. v. Smith, 45 Cal.App. 703, 705, 188 P. 311. In that case, as previously pointed out, an appeal was taken from the denial of a motion to set aside a previous order which itself could have been reviewed on appeal or by mandamus. No other authority is cited for this proposition advanced by appellant.

It appears clear that if the original order is non-appealable, an order denying a motion to vacate or amend the order or an order denying a motion for new trial is also non-appealable, and that this rule governs the instant motion.

The petition for rehearing is accordingly denied.

PER CURIAM.

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