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District Court of Appeal, Fourth District, California.


Civ. 4209.

Decided: June 23, 1950

J. F. DuPaul, City Attorney, Thomas J. Fanning, and Douglas D. Deaper, Deputies, all of San Diego, for petitioner. Warren E. Libby and Harry A. Chamberlin, Los Angeles, for respondent.

This is an application for a writ of prohibition to restrain the respondent court from proceeding with the trial of a condemnation action pursuant to an order striking and vacating a portion of a prior order. The matter is presented on demurrer by two of the defendants in that action, as real parties in interest, who will be referred to as the respondents.

On December 14, 1945, the petitioner brought this action to condemn a large number of parcels, including lands owned by the respondents, needed in the development of Mission Bay Park in the Mission Bay area. Summons was issued the same day. The respondents were served on July 31, 1946, their default was entered December 12, and a default judgment was entered against them on December 13, 1946. This judgment, after reciting that it was based upon evidence produced, adjudged that the value of the property in question was $18,000 on December 14, 1945, and ordered this paid to the respondents or deposited in court for them. It was so deposited in court by the petitioner.

On May 9, 1947, the respondents filed notice of a motion to set aside their default and this judgment, and to permit them to file an answer, on the ground that they were entered prematurely, without authority of law, and ‘through the mistake, inadvertence, surprise, and excusable neglect of defendants.’ On May 26, 1947, after a full hearing, the court entered an order granting the motion, ordering the default and judgment set aside and vacated, ordering that the answer theretofore submitted be thereby filed, and then providing ‘It is further ordered that the market value and damages (of this land), upon the trial of said action, shall be determined and fixed as of December 14, 1945.’

On March 6, 1950, the respondents filed notice of a motion for an order amending this order, by striking therefrom ‘that portion thereof ordering that damages shall be determined and fixed as of December 14, 1945’, upon the ground that this part ‘was and is erroneous, contrary to law, and beyond the power of the court.’ On March 13, 1950, this motion was denied by the judge who made the original order ‘without prejudice to its renewal at the time of trial.’ This motion was renewed on March 28, 1950, at the commencement of the trial, before another judge who entered an order striking and setting aside that portion of the relief order.

The petition further alleges that the respondent court threatens to, intends to and, unless restrained, will continue to act in excess of its jurisdiction by trying and deciding the issue of damages, as to the respondents, upon the theory that compensation and damages are deemed to have accrued at the date of the trial; that the trial court has continued the trial for the purpose of having the question here raised finally determined; and that the petitioner has no plain, speedy or adequate remedy in the ordinary course of law. It is further alleged that any remedy by appeal from any judgment rendered would be neither adequate nor speedy, since a delay involving two more trials will hinder development of this large project; that if the condemnation suit is not speedily concluded the federal government will be forced to condemn a portion of the property; that in such event, pursuant to obligations assumed in connection with the entire project, the petitioner will have to pay the damages awarded without having any control over the action; that the property is immediately required for the prosecution of work now in progress; that such immediate possession can only be obtained by depositing in court the amount of any judgment entered; and that if such monies are thus deposited its right of appeal will be lost.

The affidavits considered by the court in making the relief order of May 26, 1947, were made a part of the record here. It appears therefrom that the evidence was conflicting as to matters relied on to excuse respondents' delay and default; that the parties had, orally and by letters, agreed to stipulate that the order might be made if it contained a provision that the damages should be determined as of December 14, 1945; and that the petitioner consented to the granting of such relief provided it was based on a finding that if and when the case went to trial the damages should be determined as of the date summons was issued.

The writ is here sought on the ground that the court threatens to and will, in excess of its jurisdiction, proceed to try the action on a theory of damages and values other than the one already established. The respondents argue that the portion later stricken was not a part of the order setting aside the judgment; that it was a purely procedural and preliminary ruling on evidence, and established no right; that they could not have appealed from the original order; and that prohibition is not available since the court has jurisdiction to try all issues in the case.

This raises a question as to the nature of the order fixing the date at which damages shall be assessed, and the power of the court to later change such an order. As distinguished from the constitutional ‘right’ to compensation, the provisions of section 1249 of the Code of Civil Procedure are a part of the established procedure for determining the value. City of Los Angeles v. Oliver, 102 Cal.App. 299, 283 P. 298. It does not follow that a court order fixing such date, pursuant to that statute, is merely procedural. Under section 1249 the issuance of summons is made the controlling date in all cases, except where a trial is delayed over a year and this delay is not caused by the defendant. The purpose of section 1249 is that this controlling date shall be fixed in advance so that the measure of compensation to be applied at the trial shall be known. City of Los Angeles v. Morris, 74 Cal.App. 473, 241 P. 409. The order fixing this date was here made after the issue of damages had been once tried within a year, and in response to a request for relief which would inevitably delay the trial beyond the year. The question being directly presented, the court by its order judicially determined that the exception provided for in section 1249, whereby a different date may sometimes be used, was not applicable in this case. Such an order is more than a mere procedural matter or an incidental ruling as to the admissibility of evidence. It is a definite determination of one of the main issues in such a case, which establishes the basis on which the value of the property is to be determined. It is intended to, and does, settle that issue, and creates a substantial right for the purposes of the action.

A further consideration is that this order was made as a part of, and as one of the terms of, an order relieving these respondents from a judgment entered within one year. A ‘trial’ or hearing had been had within a year, within the meaning of the statute, and a value had been fixed on that basis. The order preserved an existing right, and granted relief on the condition that the respondents' delay, although thus excused, should not have the effect of changing the status quo in that respect or give them a benefit based upon their own delay. Relief was thus granted on ‘such terms as may be just,’ as permitted by section 473 of the Code of Civil Procedure, and in accordance with an agreement between the parties. It was accepted and acted upon, and no objection was voiced for nearly three years. A part only of the relief order was then attacked on the sole ground that it was legally erroneous. This was clearly an attempt to correct a claimed judicial error in determining that the exception provided for in section 1249 was not applicable under the facts shown. The rules permitting a judge to correct incidental but erroneous rulings on matters of law are not applicable, and may not be thus used to enable a party to escape the burden of such a relief order while keeping its benefits. To permit a court to vacate such an order after it has been accepted and acted upon over a long period, would not only be unjust, in such a case as this, but would lead to interminable uncertainty and confusion. Lee Chuck v. Quan Wo Chong Co., 81 Cal. 222, 22 P. 594, 15 Am.St.Rep. 50.

Such an order, once made, may not be set aside and a different basis for trial established, except in the manner permitted by some statutory provision. Section 1908 of the Code of Civil Procedure provides that a final ‘order is, in respect to the matter directly adjudged, conclusive between the parties * * *’. The order granting relief, of which the portion later stricken was an integral part, was entered after judgment and was appealable. Armstrong v. Armstrong, 81 Cal.App.2d 316, 183 P.2d 901. In United Railroads of San Francisco v. Superior Court, 170 Cal. 755, 151 P. 129, 132, Ann.Cas.1916E, 199, where it was held that the court had no power to set aside a previous order granting a temporary injunction for the pendency of the action, the court said: ‘The decisions of this court are numerous and uniform to the effect that a judgment or order once regularly entered can be reviewed and set aside only in the [manner] prescribed by statute.’ In Vale v. Maryland Casualty Co., 101 Cal.App. 599, 281 P. 1058, it was held that the court, having denied a motion for relief and to vacate certain default judgments, was without power to again consider the matter and vacate the judgments. In Harth v. Ten Eyck, 16 Cal.2d 829, 108 P.2d 675, a reconsideration was permitted of an order denying a motion to set aside a previous order dismissing a defendant, but only because the original order had not become final and the matter was timely presented under section 473. In St. Laurent v. St. Laurent, 35 Cal.App.2d 345, 95 P.2d 475, it was held that the court had no power to set aside an order fixing attorneys' fees, where the time for appeal had elapsed, and where no proper showing was made under section 473. In Phillips v. Trusheim, 25 Cal.2d 913, 156 P.2d 25, an order vacating a judgment on the ground that it was entered more than three years after service of summons, was reversed. It was held that while the judgment had been erroneously entered this judicial error could not be thus corrected, and that any relief under section 473 was unavailable since more than three years had elapsed. In Stevens v. Superior Court, 7 Cal.2d 110, 59 P.2d 988, 990, an order had been entered denying a motion for a new trial. Later, an order was entered reciting that in making the prior order the court had misinterpreted a waiver, setting aside the prior order, and granting a new trial in part. The court held that this was an attempt to correct a judicial error saying: ‘While a court has power to correct mistakes in its records and proceedings, and to set aside judgments and orders inadvertently made, which are not actually the result of the exercise of judgment, it has no power, having once made its decision after regular submission, to set aside or amend for judicial error.’

There is no merit in respondents' contentions that they could not have appealed from the original order, having received the relief requested, and that the long delay before the trial entitled them to the increased value since 1945, and justified the court's action in changing the order for this purpose. The order fixing the date was part of an appealable order, from which they could have appealed had they been dissatisfied. They were free to have the case set for trial at any time. The order was unconditional in this respect, and was not subject to change for this purpose. It was, in fact, designed to eliminate that very element in any future fixing of values.

The respondents further contend that prohibition will not lie to correct a completed order; that it may not be assumed that the court will erroneously rule on this issue at the trial; that it may not be inferred that the court will proceed in accordance with the void amending order; and that, in any event, the petitioner has a ‘plain, speedy and adequate remedy’ at law.

The effect of the original order was to grant a new trial in a certain manner, with the express limitation that one of the main issues was settled and was not to be further litigated. The effect of the second order is to so amend the first order as to remove this limitation and to grant a new trial on all issues, thus reopening an issue which had been finally settled and permitting a trial on a different theory. The petition alleges, and the demurrer admits for present purposes, that the court threatens and intends to thus proceed in accordance with this void order. That the court so intends, if not restrained, rather clearly appears from the fact that it postponed the trial for the express purpose of having its right to do so tested. The writ is here sought to restrain it from taking this further step, in excess of its jurisdiction, and not merely to review a completed act.

In Stevens v. Superior Court, 7 Cal.2d 110, 59 P.2d 988, such a writ was granted to prevent the court from proceeding with a new trial pursuant to a void order setting aside a previous order. While somewhat different orders are here involved their effect is very similar and the same principles should be applied. A limited new trial having been granted by the relief order, the court has no jurisdiction to proceed in a different manner in pursuance of a void order removing that limitation, and to retry the settled issue. The threatened action of the court in thus proceeding with the trial, upon a different theory and as to all issues, is an act in excess of its jurisdiction which may be restrained. Mooney v. Superior Court, 183 Cal. 705, 192 P.2d 542. Moreover, in view of the substantial showing to the contrary, it cannot reasonably be said that a plain, speedy and adequate remedy at law here appears. Under the circumstances, a prolonged procedure involving two trials and leading ultimately to an inadequate remedy should not be required.

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

BARNARD, Presiding Justice.

GRIFFIN and MUSSELL, JJ., concur.

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