CASNER v. DAILY NEWS CO

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

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

Civ. 10785.

Decided: May 05, 1938

Freidenrich & Selig, Philip Selig, Jr., and Phillip Barnett, all of San Francisco, for appellant. Cyril Appel, William M. Abbott, and Ivores R. Dains, all of San Francisco, for respondents Market St. Ry. Co. and others. George M. Naus and Donald Seibert, both of San Francisco, for respondents Daily News Co., Ltd., and others.

The defendants have made motions to dismiss the appeal of the plaintiff. An understanding of the motions involves a consideration of the following facts: As the surviving widow of Mark Casner, the plaintiff commenced an action to recover damages for the wrongful death of the decedent. She named as defendants Market Street Railway Company, a corporation, and John Bartlett, one of its employees, and she also named Daily News Company, Ltd., a corporation, and William Cohn, one of its employees. The Market Street Railway Company and John Bartlett appeared and filed an answer. The Daily News Company, Ltd., and William Cohn, its employee, appeared and filed an answer. The action was tried before the trial court sitting with a jury. After all of the evidence had been taken and all of the parties had rested, the Market Street Railway Company and its employee made a motion for a directed verdict. The Daily News Company, Ltd., and its employee made a similar motion. Both motions were argued. Before the trial court ruled on said motions the plaintiff made a motion to dismiss the action. The latter motion was granted. Thereupon, April 7, 1937, the jury was discharged. Thereafter, on April 26, 1937, Market Street Railway Company and John Bartlett served on the plaintiff a notice of motion that they would apply for an order vacating the order of dismissal and at the same time apply for an additional order granting their motion for a directed verdict. A similar notice of motion was served and filed by the other defendants. On June 28, 1937, both motions were granted. A formal written document evidencing the ruling in favor of the Market Street Railway Company and John Bartlett was signed by the judge of the trial court. After the signature of the judge appears the following: “Wherefore, by reason of the law and the premises aforesaid, it is ordered, adjudged and decreed that Cannie Casner plaintiff, do take nothing by this action as against Market Street Railway Company, a corporation and John Bartlett, defendants, but that judgment be and the same is hereby entered herein in favor of said defendants and against the said plaintiff for said defendants' costs and disbursements incurred in this action amounting to the sum of $––.” Said document is indorsed “Filed June 29, 1937.” It is also indorsed “Recorded Volume 410 page 195, June 30, 1937.” Attached to said document is a certificate by the clerk in which he certifies, “* * * the foregoing to be a true copy of the judgment entered in the above entitled cause.” The record also discloses a formal order signed by the trial judge vacating the order of dismissal and ordering and directing the entry of “judgment in favor of said defendants, Daily News Company, Ltd., a corporation, and William Cohn, and each of them, and against Cannie Casner, the plaintiff in said action, denying the relief prayed for in plaintiff's complaint against said defendants, and each of them, and for costs.” Said document is indorsed “Filed July 1, 1937. Recorded Volume 410 page 351, July 2, 1937.” To that document is attached the certificate of the clerk that it is a true copy of the judgment entered in the above–entitled cause.

On July 16, 1937, the plaintiff served and filed a notice of intention that she would move for a new trial. Said notice specified all of the statutory grounds. The record does not disclose that any order was ever made either granting or denying the new trial.

On September 14, 1937, the plaintiff served and filed a notice of appeal from (1) the judgment recorded in book 410 at page 195; (2) the judgment recorded in book 410 at page 351; (3) from the order dated June 28, 1937, vacating the order of dismissal dated April 7, 1937; and (4) from the order denying plaintiff's motion for a new trial.

The transcript was filed in this court on February 21, 1938. On April 1, 1938, Daily News Company, Ltd., and William Cohn served and filed a notice of motion to dismiss said appeal. Such notice was based on the ground that the appeal was taken 73 days after the entry of the judgments and orders appealed from. On April 4, 1938, the other defendants served and filed a similar notice of motion. Thereafter, on April 11, 1938, said motions were duly presented.

It is conceded that, if the pendency of proceedings based on the notice of intention to move for a new trial did not toll the statute, Code Civ.Proc. § 939, then the appeal was not taken in time and the motions to dismiss should be granted. The sole question presented is, therefore, Was the plaintiff, under the facts, entitled to move for a new trial? We think it is clear that she was not. The action was, as stated above, one to recover a judgment for damages for wrongful death. The plaintiff made a motion to dismiss. Her motion was granted. Under wellsettled rules of law she was not entitled to move for a new trial of the judgment of dismissal. 2 Cal.Jur. 217. After her motion had been granted the defendants later made motions to set the judgment of dismissal aside. Their motions were granted. The order granting said motions did not warrant a motion for a new trial because neither motion involved a re–examination of either a question of fact or of law presented by the pleadings. City of Pasadena v. Superior Court, 212 Cal. 309, 313, 298 P. 968–970. Said motions were made on matters independent of and subsequent to the trial and the plaintiff was not authorized to move for a new trial. Gray v. Cotton, 174 Cal. 256, 162 P. 1019. In so far as the motions asked for affirmative relief the same comments are pertinent. The judgment of dismissal was entered April 7, 1937. That judgment terminated the trial. The orders made pursuant to defendants' motions thereafter were not in response to questions of fact or law presented by the pleadings and constituted no part of the trial of the action. Harper v. Hildreth, 99 Cal. 265, 270, 33 P. 1103–1105.

It follows that under the facts presented by the record the plaintiff was not entitled to move for a new trial and that the pendency of the new trial proceedings did not toll the statutory time within which an appeal might be taken. City of Pasadena v. Superior Court, 212 Cal. 309, 298 P. 968.

In opposing the granting of the motions of the defendants to dismiss the appeal the plaintiff suggests that this court of its own motion dismiss the appeal. In making that suggestion the plaintiff calls to our attention the fact that the action was tried by the trial court sitting with a jury, that the jury was never instructed to bring in a verdict, that it never brought in a verdict, and therefore the orders dated respectively June 29, 1937, and July 1, 1937, were void. Vitamin Milling Corp. v. Superior Court, 1 Cal.2d 116, 33 P.2d 1016. But, conceding that in so far as said orders directed judgments to be entered in favor of defendants they were void, such facts do not warrant this court in dismissing the appeals. 2 Am.Jur. 870; De Jarnatt v. Marquez, 127 Cal. 558, 60 P. 45, 78 Am.St.Rep. 90. Again, said orders were twofold: They directed that the judgment of dismissal be vacated and that judgments in favor of defendants be entered. In so far as said orders purport to vacate the judgment of dismissal dated April 7, 1937, it may be argued they were erroneous but not void orders. Furthermore, they were made after judgment and were appealable orders. Casner v. Superior Court, etc., Cal.App., 74 P.2d 298. No reason appears therefore which would justify the court of its own motion in dismissing the appeal.

The motions of the defendants to dismiss the appeal are granted.

STURTEVANT, Justice.

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