PHELAN v. SUPERIOR COURT OF STATE OF CALIFORNIA IN AND FOR THE CITY AND COUNTY OF SAN FRANCISCO

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

PHELAN v. SUPERIOR COURT OF STATE OF CALIFORNIA, IN AND FOR THE CITY AND COUNTY OF SAN FRANCISCO et al.

Civ. 13985.

Decided: November 30, 1948

Hallinan, MacInnis & Zamloch and Ralph Wetheimer, all of San Francisco, for petitioner. John J. O'Toole, City Atty. and Joseph F. Murphy, Deputy, both of San Francisco, for respondents.

In a trial to a jury this petitioner as plaintiff therein had a verdict for $2000 representing damages for assault and battery. Defendant therein moved for a new trial and the court made the following order: ‘Motion for a new trial denied. Judgment (sic) reduced to $1250.00.’ This petition seeks a mandate expunging the order from the records—or at least that portion of the order purporting to reduce the verdict.

Respondents do not question petitioner's statement that a trial court has no power to reduce a verdict without the consent of the prevailing party. For citation of cases see 95 A.L.R. p. 1164. Their sole contention is that mandate will not lie since petitioner had a right of appeal from the order which he allowed to lapse. The argument would be persuasive if it related to the order denying a new trial only. But that portion of the order reducing the verdict to $1250 was beyond the jurisdiction of the court and void. Andrews v. Police Court, 21 Cal.2d 479, 133 P.2d 398, 145 A.L.R. 1042; and Andrews v. Superior Court, 29 Cal.2d 208, 174 P.2d 313 cited by both parties are not controlling. The rule of law applicable is found in Forbes v. Hyde, 31 Cal. 342, 347, from which the following language is qoted with approval in Estate of Pusey, 180 Cal. 368, 374, 181 P. 648, and also in the second Andrews case: ‘A judgment absolutely void upon its face may be attacked anywhere, directly or collaterally, whenever it presents itself, either by parties or strangers. It is simply a nullity, and can be neither the basis nor evidence of any right whatever.’

For these reasons a writ of mandate should issue directing the respondent court to strike from its order the portion reading: ‘Judgment reduced to $1250.’ Otherwise the order denying defendant's motion for a new trial should stand as entered.

Let a peremptory writ issue accordingly.

NOURSE, Presiding Justice.

DOOLING, J., and GRIFFIN, J. Protem., concur.