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


Civ. 12774.

Decided: March 22, 1945

Abraham Setzer, of San Francisco, for appellant. Morris Oppenheim, of San Francisco, for respondent.

In his petition for a rehearing appellant criticizes the statement in the opinion that the order signed by the judge on October 6 was ‘filed’ on October 14 by the clerk of the court. Appellant states that such order ‘was never filed anywhere.’ We took the recital from the verified petition of appellant for a writ of mandate where he alleged that the order granting a new trial ‘was dated, filed and entered on the 14th day of October, 1943, by a deputy clerk.’ This allegation was not denied in the return and we may assume that it may be taken as admitted. Appellant refers to some conflicting testimony taken in another proceeding, but that is not important here. We are concerned only with these conceded facts—that, whatever the paper may be called, a submission slip, an order, or a memorandum, it was signed by the judge within time and was either entered or filed on October 14th when the judge was out of the State. In any event the matter is apparently concluded by Cox v. Tyrone Power Enterprises, 49 Cal.App.2d 383, 395–397, 121 P.2d 829. Under the authority of Willis v. Superior Court of Mendocino County, 214 Cal. 603, 7 P.2d 303, it is ordinarily true that an order granting a new trial is effective when signed by the trial judge without regard to the date of its filing or entry. This rule was followed and broadened in Hackel v. Los Angeles Ry. Corp., 31 Cal.App.2d 228, 88 P.2d 178. However in this case the judge's instruction to his clerk to file the order on October 14 unless the judge directed him otherwise raises a question as to whether the order was, or was intended to be, effective before its filing. If not effective before filing it was argued that it never became an effective order because of the judge's absence from the state on that day. People v. Ruef, 14 Cal.App. 576, 626, 114 P. 48, 54. This question we found it unnecessary to decide because of our holding that we were bound on this appeal by the trial court's determination that the remedy by appeal from the municipal court was ‘a plain, speedy, and adequate remedy.’ Code Civ.Proc. § 1086. It may be suggested that, if it became necessary to decide that question, it might be held that the order became absolute at the moment that Judge Kaufman was leaving the state with the intention of not returning before October 14, because at that moment he put it out of his power to do the judicial act of directing his clerk not to file the order, People v. Ruef, supra; and the direction to file it on October 14 thereby became unconditional.

Appellant criticizes the statement that he took an appeal to the superior court from the order granting a new trial. He says that though such fact was alleged in the return no proof was offered and he cites section 462 of the Code of Civil Procedure to the effect that affirmative allegations in the answer are deemed controverted. That is not the rule in mandamus proceedings. The return is accepted as true unless controverted by the petitioner. See § 1091, Code Civil Procedure; 16 Cal.Jur. 868; McClatchy v. Matthews, 135 Cal. 274, 67 P. 134.

For this reason we reaffirm that it is proper to assume that the writ of mandate was denied because the trial court found that the petitioner had another adequate remedy. References to remarks made by the judge during the course of the trial are not controlling. This rule is so well settled that citation of authority is unnecessary.

The petition for a rehearing is denied.


Hearing denied; CARTER and TRAYNOR, JJ., dissenting.

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