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


Civ. 15065.

Decided: October 29, 1945

Holcomb & Kempley, of San Diego, for petitioners. J. H. O'Connor, Co. Counsel, and S. V. O. Prichard, Asst. Co. Counsel, both of Los Angeles, for respondent. Chas. A. Sunderlin, Mark Jones, and Max Bernbaun, all of Los Angeles, for the real party in interest.

The question posed by this petition for writ of prohibition is whether a notice of intention to move for a new trial filed prior to the filing of findings of facts and conclusions of law has any efficacy as the basis for proceedings and order granting a new trial even though the counsel for the prevailing parties participate in the argument of the motion.

Petitioners were defendants in an action brought by Emma Viola Taylor to annul her own deed conveying to petitioners certain real property and to quiet her title thereto. The basis of plaintiff's demand was the fraud of petitioners in procuring the deed. Issue having been joined the action was tried in respondent court and concluded on December 14, 1944. Decision in favor of petitioners was announced on March 8, 1945. Eight days thereafter plaintiff served and filed her notice of intention to move for a new trial. On April 5, 1945, the court signed and filed findings of fact and conclusions of law. Judgment was entered on the next day and notice of entry was served on April 10, 1945. In the meantime, on the sixth day of April the court heard and considered plaintiff's motion for a new trial, notice of intention to make which had been served and filed 21 days before the hearing of the motion. On April 17th the court made an order granting a new trial and on the motion of the plaintiff the court fixed November 27, 1945, as the day for a retrial.

Subsequent to the order of the court placing the cause on its calendar for retrial petitioners duly moved the court to strike it therefrom on the ground that the order granting the new trial was a nullity. This motion was denied.

Petitioners contend here that the order for a new trial was void for the reason that the notice of intention was served and filed ‘prior to the signing and filing of findings of fact and conclusions of law.’

Respondent counters this thesis with two propositions: (1) That petitioners waived the irregularity in the proceedings for a new trial by their active acquiescence therein in that they were present and participated in the argument of the motion, and (2) that under section 659, Code Civil Procedure, a party may ‘before the entry of judgment’ file and serve upon the adverse party a notice of his intention to move for a new trial.

If the notice of intention was a nullity because it had been prematurely filed at the time the motion was presented, then it could not have been revitalized by the attempts of petitioners' counsel to defeat it by any legal means. It is the privilege and the dut of an attorney to resist any illegal order by any legal action or legitimate means.

As to the second point, while the statute (Code Civ.Proc. 659) clearly implies that the notice of intention may be filed and served before ‘findings * * * and conclusions' have been made, yet Root v. Daugherty, 201 Cal. 12, 255 P. 181, 182, decided subsequent to the 1923 amendment of section 659, unequivocally held that filing of a notice of intention prior to the signing and filing of findings and decision is ‘ineffectual for any purpose.’ While respondent contends that the holding of the Root case has been ‘blindly followed’ (Middleton v. Finney, 214 Cal. 523, 527, 6 P.2d 938, 78 A.L.R. 1104; Reeve v. Jahn, 9 Cal.2d 244, 250, 70 P.2d 610; In re Estate of Green, 25 Cal.2d 535, 154 P.2d 692; In re Estate of Barker, 207 Cal. 112, 276 P. 992; Frye v. Pacific Freight Lines, 27 Cal.App.2d 748, 750, 81 P.2d 1027), yet even though we could see to eye with respondent under no circumstances could we compose a decision of such potency as would prevail against a pertinent pronouncement of the Supreme Court applicable to the factual situation shown in this case.

Respondent contends that it did not lose jurisdiction even though the motion for a new trial was premature. With this we cannot agree. All proceedings for a new trial having been abortive, respondent had no jurisdiction of the matter on and after the eleventh day following the entry of the judgment.

Let the peremptory writ issue.

MOORE, Presiding Justice.

McCOMB and WILSON, JJ., concur.