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

CASNER v. DAILY NEWS CO., Limited, et al.*

Civ. 10785

Decided: January 25, 1940

Glikbarg, Wolf & Selig, Philip Barnett, Francis Gill, Freidenrich & Selig, and Philip Selig, Jr., all of San Francisco, for appellant. George M. Naus and Donald Seibert, both of San Francisco, for respondents Daily News Co., Limited, and William Cohn. Wm. M. Abbott, Cyril Appel, and Ivores R. Dains, all of San Francisco, for respondents Market St. Railway Co., and John Bartlett.

As the surviving widow of Mark Casner, the plaintiff commenced an action for damages for his wrongful death. The complaint alleges that he was struck by an automobile owned by the defendant Daily News Company, thrown on the track of the defendant Market Street Railway Company and run over by one of its streetcars. The plaintiff sued both corporations. The trial was commenced in April, 1937, before the court sitting with a jury. After all parties had rested each defendant made a motion for a directed verdict. Before the motion was ruled upon the plaintiff moved to dismiss the action without prejudice. This motion was granted, whereupon, and on the same day, April 7, 1937, the jury was discharged. On April 26th the defendants respectively served and filed notices of motion to vacate the order of dismissal and for orders that their motions for a directed verdict be granted. These motions were granted on June 28, 1937. A formal judgment for the defendant Market Street Railway Company, and against the plaintiff was, on written direction of the trial judge, filed on June 29th, and entered on June 30, 1937. Also a formal judgment for the defendant Daily News Company was, on like written direction of the trial judge, filed July 1 and entered on July 2, 1937.

On July 16, 1937, the plaintiff served and filed a notice of intention to move for a new trial, specifying all the statutory grounds. No order of the trial court disposing of this motion appears of record. It was therefore denied without order of the court under the provisions of section 660 of the Code of Civil Procedure.

On September 14, 1937, the plaintiff filed a notice of appeal: (1) from the order of June 28, vacating the order of dismissal of date April 7, 1937; (2) from the judgment entered June 30; and (3) from the judgment entered July 2, 1937. The notice also specified an appeal from the order denying the plaintiff's motion for a new trial. As the order denying the motion for a new trial was not an appealable order, no further notice need be taken of the attempted appeal therefrom. However, its propriety may be inquired into on an appeal from the judgments. Section 956, Code Civ.Proc.

It is clear that no order directing a verdict was made and no verdict was rendered. When the order vacating the order of dismissal was entered, the effect was that the cause of action then stood as one pending and undetermined in said court. The procedure that should have been followed thereafter is set forth in section 616 of the Code of Civil Procedure. That section provides: “When prevented from giving verdict, the cause may be again tried. In all cases where the jury are discharged, or prevented from giving a verdict, by reason of accident or other cause, during the progress of the trial, or after the cause is submitted to them, the action may be again tried immediately, or at a future time, as the court may direct.” By following such procedure the cause could have been completely determined on its merits.

However, instead of following the procedure so provided, the trial court heard motions for directed verdicts, granted the same, and caused judgments to be entered on said orders in favor of the defendants. The effect of a judgment rendered under similar circumstances was under consideration in Vitimin Milling Corp. v. Superior Court, 1 Cal.2d 116, 33 P.2d 1016. At page 119 of 1 Cal.2d, at page 1018 of 33 P.2d, the court said: “In the first place, it appears without dispute that, although a motion for a directed verdict as to the petitioner was made and noted by the minute order as ‘granted,’ no instruction to return a verdict was submitted to the jury; no request was made by the petitioner for an instruction to the jury to return a verdict; and no verdict was returned either by the jury, by the court, or at all, and there is no showing or intimation that the jury in this case would have refused to return a verdict for the petitioner, if it had been instructed so to do. That the court has the power to direct the jury to return a verdict in a proper case cannot be questioned. Nor is it disputed that the return of a verdict in such a case is a ministerial act. A verdict in any case must be in writing. Section 618, Code Civ.Proc. When the verdict is rendered, an entry thereof must be made in the minutes of the court. Section 628, Code Civ.Proc. As to these requirements there is no distinction between a verdict returned by the jury after deliberation and one returned by direction of the court. In each case the verdict serves as a basis for the entry of a judgment thereon. In the absence of a verdict entered as required by law, there is no finality to the proceedings. The order merely granting the motion for a directed verdict is not an appealable order. Section 963, Code Civ.Proc. And we know of no authority in law for the entry of a judgment which would, in the absence of a verdict, in any way constitute a judgment on a verdict. The purported judgment of May 4th was therefore void on the face of the record, and was properly set aside by the respondent judge.” For the same reasons it is clear that the judgments appealed from, that is, the formal judgments entered respectively on June 30, 1937, and July 2, 1937, were void.

The defendants state several facts that were present in the Vitimin case which they claim distinguish that case from this. Conceding that those facts do distinguish it, nevertheless the clear language contained in that case shows it did not rest on the facts which defendants call to our attention.

The defendants assert the error, if any, in causing the judgments complained of to be entered, was not prejudicial. Const. art. VI § 41/212. However, we think that assertion cannot be sustained. When, on June 26, 1937, the order was made setting aside the order of dismissal, such order became effective at the moment it was entered and thereafter remained in force as an effective restoration of the cause as an action pending and undetermined in said court. Casner v. Daily News Co., Ltd., 12 Cal.2d 402, 405, 84 P.2d 1032. The procedure to be followed was a trial de novo. Code Civ.Proc. § 616. No such new trial was had. No stipulation waiving a trial de novo or consenting to the use of the record in the first trial was entered into. Therefore, the judgments appealed from determine issues that have never been tried. Such judgments are a miscarriage of justice. Palmer v. Tschudy, 191 Cal. 696, 703, 218 P. 36.

On September 14, 1937, the plaintiff filed a notice of appeal from the order made June 28, 1937, vacating the order of dismissal. That is, the notice was filed seventy-eight days after the entry of said order. The appeal from that order was not taken in time. Code Civ.Proc., § 939. Therefore said order is still in effect. Casner v. Daily News Co., Ltd., supra. The appeal from that order is dismissed.

The order denying a motion for a new trial is not an appealable order and the appeal from that order is also dismissed.

The judgments appealed from are reversed.


We concur: NOURSE, P.J.; SPENCE, J.