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


Civ. No. 13958.

Decided: December 22, 1948

Donahue, Richards, Rowell & Gallagher and Bryant M. Bennett, all of Oakland, for petitioner. Emmett R. Burns, Wm. C. Burns, Fred Rosser and F. E. Kilpatrick, all of San Francisco, for respondent.

Petitioner seeks a writ of prohibition to prevent the superior court from trying, or taking any further proceedings in, an action in which petitioner is the defendant. The action was commenced by Grace M. Joseph and Collis P. Joseph on November 15, 1945 to recover damages from petitioner herein for personal injuries. On January 15, 1948 pursuant to notice and after a contested hearing the superior court made an order dismissing the action for failure to bring it to trial within two years after the action was filed. Code Civ.Proc. sec. 583.

Plaintiffs thereafter noticed for February 3, 1948 a motion to set aside the order of dismissal on the ground stated in the notice of motion ‘that to allow said judgment and order to stand would be abuse of discretion herein and an injustice would result to plaintiffs herein.’ The motion was supported by an affidavit of counsel for plaintiffs which set out facts tending to show that the trial of the action had not been unreasonably delayed and on March 8, 1948 the court made an order purporting to vacate and set aside the order of dismissal. This order recites that it is made on the ground that ‘upon further consideration and a more complete presentation of the facts' the court concluded that there was no inexcusably unnecessary delay in bringing the action to trial.

The order of dismissal was a final judgment. Southern Pac. R. Co. v. Willett, 216 Cal. 387, 390, 14 P.2d 526; Colby v. Pierce, 17 Cal.App.2d 612, 614, 62 P.2d 778. In the absence of clerical error a final judgment can only be modified or set aside in some manner authorized by the Code of Civil Procedure and an order purporting to modify or vacate the judgment on a ground or in a manner not so authorized is an excess of jurisdiction and wholly void. Treat v. Superior Court, 7 Cal.2d 636, 62 P.2d 147; Lankton v. Superior Court, 5 Cal.2d 694, 55 P.2d 1170; Stanton v. Superior Court, 202 Cal. 478, 261 P. 1001; Diamond v. Superior Court, 189 Cal. 732, 210 P. 36; and cf. Howard v. Superior Court, 25 Cal.2d 784, 789, 154 P.2d 849. The judgment of dismissal was not the result of clerical error and the order of vacation was not placed on that ground. The vacating order was on its face an attempt to reconsider the merits of the original motion to dismiss. None of the grounds stated in Code Civ.Proc. sec. 473 was attempted to be stated in the notice of motion to vacate nor was any such ground attempted to be found or recited in the order of vacation. The purported order vacating the judgment of dismissal was therefore one made in excess of jurisdiction and void on its face. We quote briefly from Lankton v. Superior Court, supra, 5 Cal.2d page 695, 55 P.2d page 1170:

‘No showing was attempted to be made that the judgment had been rendered through the mistake, inadvertence, surprise or excusable neglect of the defendant. Therefore, the court was without authority to modify the judgment upon any of those grounds under the provisions of section 473 of the Code of Civil Procedure.’

Harth v. Ten Eyck, 16 Cal.2d 829, 108 P.2d l75, relied upon by respondent, is not in point. That case deals exclusively with the power of the trial court to permit the renewal of a motion admittedly made under Code Civ.Proc. sec. 473.

Respondent argues that the remedy by appeal is adequate. It would be a futile waste of time and expense to try the action in the face of the judgment of dismissal, which has become final because the order purporting to vacate this judgment is void on its face. The granting of prohibition where there is a remedy by appeal lies in our sound discretion (Golden State Glass Corporation v. Superior Court, 13 Cal.2d 384 and cases cited on page 389, 90 P.2d 75) and we consider this case a proper one for the issuance of the writ.

It is ordered that the writ of prohibition issue as prayed.

DOOLING, Justice.

NOURSE, P.J. and GOODELL, J., concur.