ROUNDS v. DIPPOLITO

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District Court of Appeal, Fourth District, California.

ROUNDS v. DIPPOLITO et al.

Civ. 3833.

Decided: December 08, 1948

Walker & Sullivan, of Riverside, for appellants. Oliver M. Charleville, of San Bernardino, for respondent.

Plaintiff and respondent C. E. Rounds commenced an action (case No. 58123) to recover $1014.90 for removing eucalyptus trees on the Dippolito property, for foreclosure of a mechanic's lien against the defendants Joseph Dippolito, et al., the owners of the property, and against George J. Garecht and Raymond H. Marks, doing business as Grading and Excavation Company, the original contractors, and against Virgil Grove, the subcontractor with whom plaintiff made an agreement to remove the trees, at an agreed wage of $9 per hour.

The appellants, Garecht and Marks, as plaintiffs, also filed and action against defendants Dippolito, et al., owners of the property (case No. 57843), to recover $1200 and to foreclose their lien under their contract with defendants to remove the trees. By stipulation both actions were consolidated for trial. In case No. 58123 (involved in this appeal from a motion of Garecht and Marks to vacate the judgment), the trial court found that plaintiff was entitled to recover $908 against Grove, and gave judgment in a like amount against the Dippolitos, as owners, with a right to foreclose the lien upon their premises. The findings signed in that case on May 3, 1948, make no mention of the disposition of the demand against defendants and appellants Garecht and Marks, although the answer of the Dippolitos specifically requests that all parties to the action be required to set forth their claims and that they be adjudicated in that action. However, the judgment recites that plaintiff ‘recover judgment against the defendants in the sum of $908.00.’ The firm of Garecht and Marks was previously named as one of the defendants.

In case No. 57843 judgment was rendered on May 17, 1948, in favor of plaintiffs Garecht and Marks against defendants Dippolito, et al., owners of the property, in the sum of $1200, with a proviso ‘that there should be deducted from the judgment the sum of $908 adjudged due and owing the plaintiff C. E. Rounds by the defendants Joseph Dippolito, et al., in action No. 58123’. No notice of entry of judgment was given to appellants Garecht and Marks, and no appeal was taken from the judgment in either case.

On July 7, 1948, more than 60 days after entry of judgment in case No. 58123 but within 60 days after entry of judgment in case No. 57843, appellants Garecht and Marks filed a notice of motion to vacate the judgment entered in case No. 58123, under Secs. 663 and 663a of the Code of Civil Procedure, which motion was, by the trial court, denied. They now appeal under Sec. 963, subd. 2 of the Code of Civil Procedure. Plaintiff moves to dismiss this appeal on the grounds (1st) that under Secs. 663 and 663a, supra, only an order granting such a motion is appealable. This point is disposed of contrary to plaintiff's contention in Bond v. United Railroads, 159 Cal. 270, 273, 113 P. 366, 48 L.R.A.,N.S., 687, Ann.Cas.1912c, 50. That no appeal lies from such an order because such motion was not filed within 60 days after entry of judgment. It has been definitely held that the remedy under secs. 663 and 663a of the Code of Civil Procedure is merely cumulative and not designed to supersede the remedy by appeal provided under Sec. 963 of the Code of Civil Procedure. Patch v. Miller, 125 Cal. 240, 57 P. 986; Modoc Co-Operative Ass'n v. Porter, 11 Cal. App. 270, 274, 104 P. 710. Section 663, supra, specifically provides for such a motion as here made, where such party would be entitled to a different judgment based upon incorrect or erroneous conclusions of law not consistent with or not supported by the findings of fact. A review of the judgment is limited to this particular inquiry. Potter v. Pigg, 35 Cal. App. 707, 708, 170 P. 1066.

Section 663a, supra, contemplates the filing and serving of a notice of intention to make such a motion ‘within ten days after notice of the entry of judgment’. It is conceded that plaintiff served no such notice of entry of judgment and therefore has not complied with that provision of that section. Confusion as to the finality of the two judgments entered exists because of the failure of the court to embody its decision in a single set of findings, upon which a single judgment should have been entered. Stanton v. Superior Court, 202 Cal. 478, 261 P. 1001; People v. Ocean Shore Railroad, Incorporated, 22 Cal.App.2d 657, 72 P.2d 167.

From a reading of the findings and conclusions submitted to the trial judge and signed by him it appears that it was not the intention of the court to render a judgment against defendants Garecht and Marks in that action. The judgment, however, recites that plaintiff recover judgment against all defendants, including these named defendants. Therefore, it cannot be said that these particular defendants are not parties interested in that action in so far as the judgment runs against them. At least, to this extent, they are proper parties to this appeal.

The motion to dismiss the appeal from the order is denied.

GRIFFIN, Justice.

BARNARD, P. J., concurs.