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

T. A. MINARDI, Plaintiff, Respondent and Appellant, v. E. A. COLLOPY and Stella Collopy, Defendants, A. L. CASTLE, Inc., a corporation, Third-Party Claimant, Appellant and Respondent, John L. STEVENSON, Third-Party Claimant and Respondent.*

Civ. 17086.

Decided: March 29, 1957

Hession, Robb & Creedon, San Mateo, Ross E. Hamlin, Jr., David W. Brown, San Mateo, of counsel, for appellant A. L. Castle, Inc. Rankin, Oneal, Luckhardt, Center & Hall, J. E. Longinotti, San Jose, for appellant and respondent T. A. Minardi. LeRoy A. Broun, Centerville, for respondent John L. Stevenson.

These are cross-appeals from two orders relating to certain third party claims filed respectively by John L. Stevenson, hereinafter called Stevenson, and A. L. Castle, Inc., a corporation, hereinafter called Castle, after plaintiff had caused the Sheriff of Santa Clara County to levy an attachment or garnishment of all funds belonging or due to defendant from Frostcraft Packing Company, hereinafter called Frostcraft, the purchaser of a bean crop grown by defendants. The appellants are plaintiff and Castle. Stevenson, having reached a settlement with plaintiff, is not a party to the appeal. The procedural facts are complicated but substantially undisputed.

The main action was in two counts, one on a promissory note in the amount of $11,870.43, the other for an accounting of one-half of the proceeds of the sale of the bean crop grown by defendants and sold to Frostcraft, which one-half had allegedly been assigned by defendants to plaintiff by a written contract of October 29, 1953. The attachment was levied on August 3, 1954. On August 25th Stevenson filed with the Sheriff his third party claim to the cash credits attached in the sum of $4,377.84 based on an alleged crop mortgage and an assignment of the proceeds of the sale of the bean crop by defendants to Stevenson, notice of which was given to Frostcraft. On or about September 23, 1954 Castle filed with the Sheriff his third party claim to all sums which would come into the Sheriff's possession from the garnished debts or credits in the sum of $4,377.84, based on a partial assignment of the proceeds of the sale of said bean crop by defendants to Castle on March 19, 1954, guaranteed to be the first assignment and accepted as such by Frostcraft on April 19, 1954. Within the statutory period after the filing of each of said third party claims plaintiff filed the required undertaking. On November 10, 1954, Stevenson filed a petition to determine title, stating the filing of its third party claim on August 25, and of the one of Castle's on September 23rd and praying to set a day for the hearing. On the same day the court made an order reciting the garnishment and the two third party claims and setting the hearing of all parties interested for December 9, 1954. On November 24, 1954 judgment for plaintiff in the main action was entered for $12,334.36 and attorney's fees. On December 1, 1954 plaintiff levied execution on the garnished assets and Frostcraft delivered to the Sheriff the sum of $4,377.84. The hearing set for December 9th was by agreement of the parties continued to December 14th and again to December 20, 1954. Pursuant to a letter of Stevenson's counsel requesting that the matter be placed off calendar on the ground that the third party claims of Stevenson and Castle had been prematurely filed at a time when no funds were in the hands of the Sheriff, a minute entry was made on December 14th, placing the third party claims off calendar. Castle received notice of this fact, plaintiff does not seem to have received notice. On or about the same day, December 14th, Stevenson filed a new third party claim with the Sheriff, similar to the first one except that the ‘cash credits' were now described as being held by the Sheriff. On or about December 17th Castle filed a new third party claim with the Sheriff, similar to the first one except that the amount of $4,337.84 was described as now in the possession of the Sheriff. When on December 20, 1954, plaintiff and his attorney appeared before the court, Judge Del Mutolo presiding, for the agreed hearing, the Clerk informed them that the matter was placed off calendar pursuant to the letter received from Stevenson's attorney. Although the other parties were not represented, counsel for plaintiff urged that he had no knowledge of the request to place the matter off calendar, that the parties had stipulated to a hearing at that time, and that the hearing should be had. When the court consented to hear him he made an oral motion to dismiss the petition of third party claim, which the court granted. The minute entry reads: ‘December 20, 1954 Cause before the court on oral motion of Mr. J. E. Loginotti, Esq., counsel, the motion to dismiss the petition of Third Party Claim is presented and submitted to the Court. Whereupon the court made its order dismissing the Petition for Third Party Claim.’ On the same day the court signed a written order prepared by plaintiff's counsel, which recited that the petition came regularly on for hearing, the request made to place it off calendar with the ground given therefor, and the fact that the claimant did not appear and present evidence, which not only ordered the petition of Stevenson dismissed but also adjudged that the claims were of no force and effect and that claimants were not entitled to the property involved.

On December 22nd Stevenson again filed a petition for hearing to determine title, now alleging that the funds were in the hands of the Sheriff, and the filing of his own (2nd) third party claim on December 13th and also the filing of a claim by Castle. The same day Judge Del Mutolo made an order reciting the funds held in possession by the Sheriff and the two third party claims and setting the hearing of all parties claiming an interest for January 11, 1955. On December 27, 1954, the Sheriff filed the second claims of both Stevenson and Castle with the court. On the same date plaintiff moved to strike said petition of Stevenson and the two third party claims to which it related, asserting that the invalidity of the claims of Stevenson and Castle had been decided by the decision of December 20th and that there was no authority for relitigating the matter in the same action. On January 11, 1955 the court, Judge Avilla presiding, granted the motion to strike. At the end of the hearing Judge Avilla stated: ‘Without passing on the merits of your position or your position with regard to what the Court has before it, and what the Court should have done at that time, I don't think this is your proper remedy. I certainly am not going to set aside the judgment of another department or court. I think you may have a remedy, but I don't think this is it.’

On or about January 16, 1955 the Sheriff delivered to plaintiff the funds obtained from Frostcraft. Plaintiff offered to divide the funds between himself and the two claimants in proportion to the claims of each against the defendants. Stevenson accepted said offer and was paid his proportionate share, but Castle rejected it and instituted a separate ordinary action against Frostcraft on the guaranteed assignment and acceptance on which its third party claims had been based. In said action, which is not directly involved in this appeal, the answer of Frostcraft set up a defense of res judicata on the basis of the above orders. Thereupon on April 6, 1955, Castle filed a notice of motion to correct the judgment of December 20th to conform to decision. After a hearing before Judge Del Mutolo on April 15th, in which counsel for plaintiff conceded the possibility that the written order might be considered a decision on the merits and that that might be more than the court had intended, the court on May 3, 1955 filed an order amending the written order of December 20, 1954 so as to read like the minute order of that day only, thereby eliminating any decision on the merits.

On May 6, 1955, Stevenson filed a dismissal of his petition of December 22, 1955 (the second petition for a hearing to determine title). On May 20th Castle filed a notice of motion, in form to correct the order of January 11, 1955, striking the second petition for hearing to determine title and third party claims, but actually to vacate said order and grant a hearing on the merits of the title contest. Castle urged that the order of January 11th was based on an incorrect statement of the decision of Judge Del Mutolo of December 20, 1954 then contained in the record which had now been corrected. Hearing was set for June 10, 1955. On June 9, 1955 plaintiff filed a notice of appeal from the order of Judge Del Mutolo of May 3, 1955 correcting his order of December 20, 1954. At the hearing of June 10th before Judge Avilla plaintiff opposed the motion of Castle because Stevenson's dismissal of his petition to determine title had terminated the proceedings, because of his own appeal from the correcting order of Judge Del Mutolo, because of laches of Castle, and because the order of January 11th had not been caused by clerical mistake which could be corrected by the court. The court by minute order of June 16th denied the motion to set aside, reciting only that petitioner Stevenson had abandoned the petition for hearing to determine title by written dismissal. The written order filed June 17, 1955 does not contain the ground for the dismissal. On June 22, 1955 Castle filed notice of appeal from the order denying correction of the order of January 11, 1955.

I. Appeal by plaintiff from the order of Judge Del Mutolo of May 3, 1955. This appeal is wholly without merit. It is settled that when the trial judge through inadvertence signs an order or decision different from that which he intended, he has inherent power to correct such mistake, although he has no power to correct errors of judicial judgment in a decision rendered. It is primarily for the trial judge to determine whether the decision misstated his real intention, and in the absence of a clear showing to the contrary his conclusion to that effect is binding on appeal. Bastajiian v. Brown, 19 Cal.2d 209, 120 P.2d 9; Raines v. Damon, 89 Cal.App.2d 812, 815–816, 201 P.2d 886; Meyer v. Porath, 113 Cal.App.2d 808, 811–812, 248 P.2d 984. Here, the order appealed from states that Castle requested the court to correct clerical errors and recitations and good cause appearing therefor a correction is ordered which causes the written order to read exactly like the minute order entered. There is no evidence whatever except the signing of the written order indicating that the court intended to make a decision differing from its minute order. We must then accept that the signing of the different written order was an inadvertence. Appellant's contention that the order appealed from constituted an abuse of discretion because of laches of Castle is without merit because a correction to make an order conform to the decision actually made, may be made by the court on its own motion without notice regardless of lapse of time. Meyer v. Porath, supra; La Mar v. Superior Court, 87 Cal.App.2d 126, 129–130, 196 P.2d 98. The order of May 3, 1955, correcting the order of December 20, 1954 will be affirmed.

II. The appeal by Castle from the order of Judge Avilla of June 16th or 17, 1955.

The first question to be decided on this appeal is whether the written dismissal of the petition for hearing to determine title filed with the clerk under section 581, subdivision 1 of the Code of Civil Procedure effectively terminated said proceedings as to all three parties involved. The question seems not to have been decided before. Section 581, subdivision 1, supra, cannot be literally applicable here because it regulates the right of a plaintiff to dismiss an action, whereas Stevenson, who sought to dismiss the proceedings, was a third party claimant in a summary special proceeding of a distinctive nature. Neither can the proviso, ‘that a counter claim has not been set up, or affirmative relief sought by the cross-complaint or answer of the defendant’ be literally applicable because in said special proceeding there are no such pleadings. However, according to the rationale of section 581, subdivision 1, supra, the third party claimant had no right independently to dismiss his petition if there was duly before the court another party or other parties entitled to affirmative relief in the proceedings. Such is the case in a third party claim procedure under section 689, supra, whoever actually files the petition for a hearing. The procedure provided for in said section in so far as here involved is as follows. A third person who claims that personal property levied on is his property delivers a verified written claim setting out his title and right of possession to the officer making the levy. Within 10 days after the delivery the third party claimant or the person in whose behalf the levy was made may petition the court from which the writ issued for a hearing to determine title to the property in question. Such hearing must be had within 20 days unless continued for good cause. Ten days notice specifying that the hearing is for the purpose of determining title to the property in question must be given to the officer making the levy and to the party who did not file the petition. At the hearing the third party claimant has the burden of proof. The third party claim delivered to the officer must be filed by him with the court and shall constitute the pleading of the third party claiment and shall be deemed controverted by the person for whom the levy was made. At the conclusion of the hearing the court shall give judgment determining the title to the property in question, which shall be conclusive of the rights under the levy of the person in whose behalf the levy was made.

The above statutory provisions show that the proceedings can be brought into the court by either of the parties and that the relief granted by the judgment to determine title is as affirmative in character with respect to the party for whom the levy was made as to the third party claimant. Neither party may then be entitled one-sidedly to prevent the determination of title once the court has obtained jurisdiction by the petition of either one of them. In our case the dismissal by Stevenson alone, without written consent of the plaintiff or court order was ineffective. A contrary decision would lead to the absurd result that if the plaintiff wished to be certain to obtain the hearing and determination of title expressly accorded him by section 689 he must file a petition of his own even when the third party claimant has already filed one, although the second petition would be a mere duplication.

Section 689 does not contain any provision for the case of more than one third party claim regarding the same levy. Nevertheless, a procedure which brings all such claims at the same time before the court by one petition seems desirable and unobjectionable. Such is immediately clear when the person in whose behalf the levy took place is the petitioner. But also each claimant must have the possibility to have all claims heard at the same time in the manner here used by Stevenson. But when, pursuant to a petition mentioning all claims, the hearing of all claimants has been ordered by the court and the claims of all claimants have been filed by the Sheriff with the court, the claimant who has not filed a petition is as much before the court for affirmative relief as the claimant or plaintiff who has filed the petition. His consent will also be required for a dismissal without court order effective to terminate the whole proceeding. Compare as illustrating the proposition that a person who has initiated proceedings in which other parties also have an affirmative interest cannot withdraw his interest in such manner as to cause the proceedings to fail for the other interested parties. In re Estate of Raymond, 38 Cal.App.2d 305, 308, 100 P.2d 1085; In re Guardianship of Lyle, 77 Cal.App.2d 153, 157, 174 P.2d 906; Voyce v. Superior Court, 20 Cal.2d 479, 127 P.2d 536. Also for this reason the attempted dismissal by Stevenson could not prevent Castle from pursuing his motion to set aside the order of January 11, 1955 and to have the determination of title set for hearing.

The trial court had power to vacate the order of January 11, 1955, under the rule recognized in Key System Transit Lines v. Superior Court, 36 Cal.2d 184, 187–188, 222 P.2d 867, that a court has inherent power to vacate a judgment entered because of the court's mistake or misapprehension as to the state of the record or as to the existence of extrinsic facts upon which the court's action is based. Judge Avilla mistakenly assumed that the order of Judge Del Mutolo of December 20, 1954 in the record actually was what it on its face stated, to wit, a decision on the merits of the third party claims being litigated, whereas no such decision was intended or actually made by Judge Del Mutolo, as shown by the correction afterwards made. Such was a mistake as to the actual status of the proceedings in which no erroneous judicial consideration of Judge Avilla was involved, which could only be attacked directly by the remedies provided therefor. The power to vacate here involved is independent from the time for any regular remedy. It has been exercised almost three years after the judgment was rendered. In re Rothrock, 14 Cal.2d 34, 92 P.2d 634.

The recital in the minute order of Judge Avilla of nothing but the fact that Stevenson had abandoned the petition for hearing to determine title shows that he did not consider the merits of Castle's petition, but erroneously thought that because of said attempted dismissal the court had lost jurisdiction over the whole matter. In such case the appellate court will reverse the decision for the purpose of decision of the merits by the trial court, unless it appears as a matter of law that the appellant cannot be entitled to relief. Verdier v. Verdier, 36 Cal.2d 241, 244, 223 P.2d 214; See Robinson v. Superior Court, 35 Cal.2d 379, 383–384, 218 P.2d 10.

The fact that plaintiff had appealed from the correcting order of Judge Del Mutolo did not prevent its consideration by Judge Avilla as the correcting order was self-executing because it did not require any process of the court to carry it into effect. The appeal does not stay the effectiveness of such an order. Caminetti v. Guaranty Union Life Ins. Co., 22 Cal.2d 759, 763, 141 P.2d 423.

Laches is a question of fact, to be decided primarily by the trial court considering all the facts and surrounding circumstances of the particular case. (18 Cal.Jur.2d Equity § 54.) It is not for this court to decide as a matter of law whether Castle's motion to set aside was barred by laches. The less so as the power to set aside for mistake rests particularly in the court in which the mistake was made.

The order of May 3, 1955 is affirmed; the order of June 16–17, 1955 is reversed and the cause remanded for further proceedings in conformity with the views expressed herein, plaintiff to bear the costs of the appeal.