BASTAJIAN v. BROWN ET AL (1941)

The above entitled action was commenced in the latter part of 1935 or the early part of 1936 by Blanche H. Comstock, who died during the pendency of the action. Appellant S. B. Bastajian was appointed administrator with the will annexed of her estate. Blanche H. Comstock, where necessary, will be referred to in this opinion as plaintiff, and said administrator will be referred to as appellant. The action was one for fraud. It was regularly tried and at the conclusion of the trial was taken under submission by the court and on May 14, 1936, the following minute entry was made: “394424. Blanche H. Comstock v. James E. Brown, et al. Cause heretofore tried and submitted, the court now orders judgment for defendants.”

Thereafter and for over a period of one year no findings of fact and conclusions of law and judgment were submitted to the trial court. In the early part of May, 1937, findings of fact and conclusions of law and judgment were prepared by C. P. Von Herzen, one of the attorneys for plaintiff, and handed to the clerk of the court for submission to the trial judge. Service of a copy of the findings of fact and conclusions of law were acknowledged as follows: “Received copy of the within Findings of Fact and Conclusions of Law this 11th day of May 1937. Wilbur Bassett, attorney for defendants.” On June 4, 1937, the trial judge signed the findings of fact and conclusions of law as proposed by Mr. Von Herzen and also on the same date signed the judgment. The findings and judgment were filed on that day. Notice of entry of judgment was served and receipt of copy of the notice was acknowledged on the 9th day of June, 1937, by Wilbur Bassett, attorney for defendants. No motion for a new trial was made and no appeal was taken by defendants.

On or about August 23, 1937, defendants filed and served the motion for an order of the court setting aside and vacating the findings of fact and conclusions of law and judgment signed by the court on the 4th day of June, 1937, upon the grounds that said findings, conclusions, and judgment did not conform to the true judgment rendered by the court, and that by reason of clerical mistakes, said findings, conclusions, and judgment which were actually signed did not conform with the judgment which the court directed to be prepared; that said judgment was rendered against said defendants through their mistake, inadvertence, surprise and excusable neglect; that said judgment was procured from the above entitled court by fraud and deception practiced on said court.

On September 29, 1937, the trial judge made an order granting the motion to set aside the findings and conclusions of law and the judgment, and as a basis for so declaring found that said findings of fact and conclusions of law and judgment did not conform to and set forth the true judgment rendered by the court in that the court intended to pronounce and did pronounce judgment in the action in favor of the defendants upon all of the issues presented, and decreed, among other things, that the deed conveying the premises involved in the action to defendant Brown was valid and in full force and effect, and conveyed good title to them, while said finding of fact and conclusions of law and said judgment inadvertently and erroneously contained findings against said defendants and in favor of the plaintiff, and inadvertently and erroneously decreed that said deed be set aside, which was not the judgment of the court; that said findings of fact and conclusions of law and said judgment were signed by the court inadvertently and by mistake, and did not express the intent of the court nor the true judgment rendered herein, and that the signing of the same by said court constituted a clerical mistake; that said findings of fact and conclusions of law and judgment were made and rendered against said defendants through mistake, inadvertence, surprise, and excusable neglect of said defendants and their counsel, under circumstances which involved the illness and death of the chief counsel for said defendants, all as particularly set forth in the affidavits on file herein; that at the time of the presentation of said findings of fact and conclusions of law and said judgment to the court for signature approximately one year had elapsed since the court had announced its decision and had judicially determined the issues of the case, and that said findings, conclusions, and judgment were signed by the court in reliance upon the representations of plaintiff's counsel then and there made to the court that the instruments so presented contained the true findings, conclusions, and judgment of the court in the action as previously announced by the court; that the statement to the court that said instruments so presented for signature did contain the true judicial determination of the issues of the action was untrue in that said instruments contained provisions contrary to the actual decision made and announced by the court, and inconsistent with and different from the judicial determination of the issues involved, and that the presentation of said findings of fact and conclusions of law and said judgment to the court for signature constituted a fraud and deception practiced upon the court in misrepresenting and misstating the true decision of the court after the lapse of a long period of time.

On behalf of the defendants affidavits were submitted in support of the motion to vacate and set aside the findings and judgment. The affidavit of James E. Brown, one of the defendants, asserts that upon being served with summons and complaint in the action he employed W. D. Spalding, as his counsel and retained him to defend said action, and was thereafter informed by said Spalding that the latter had associated Wilbur Bassett as associate counsel for defendants, and that said Bassett would conduct the trial of said action; that the action was tried on May 6th and 7th of 1936, and at the conclusion was ordered submitted; that on May 15, 1936, affiant was advised over the telephone by said Spalding that a decision had been rendered in said action in favor of the defendants on all of the issues, and that the court had found that said defendants were the lawful owners of the real property involved, and that their title was to be quieted against the plaintiff; that he immediately thereafter went to the office of Mr. Spalding, who repeated said information to him and he thereupon paid said Spalding the amount of his fee which he required and was advised that the action had been successfully terminated in favor of said defendants, and that there was nothing further to be done; that he thereupon left the office of said Spalding and thought no more of the matter and thought that the case had been concluded until more than a year later, in August, 1937, when he ascertained for the first time that judgment had been signed in said action to the effect that the deed to defendants was invalid. Affiant also learned that his attorney, W. D. Spalding, had died, and affiant thereupon consulted Thomas Reynolds and retained him to investigate and ascertain why a judgment had been signed different from the one announced by the court; that said judgment was taken against defendants through mistake, inadvertence and surprise, and affiant is informed and believes and alleges that said erroneous judgment occurred as a result of the illness and death of W. D. Spalding, who passed away shortly after the trial of said action, and that said Wilbur Bassett, associate counsel, believed that said Spalding had rendered and filed a correct judgment, and that by reason of his illness and death said Spalding had not done so, and that nobody had informed affiant or Margaret Brown, his wife, of any of the said facts and circumstances, and affiant believes that he should be relieved against said judgment.

Wilbur Bassett, one of the attorneys for defendants, submitted an affidavit substantially as follows: that he was one of the attorneys of record for the defendants in said action; that he was requested to act as one of the attorneys of record by W. D. Spalding and that said Spalding requested him to become associated with him in said action and to try the action, and that he and said Spalding appeared at the trial in behalf of said defendants and affiant conducted said trial; that thereafter, on May 14, 1936, the court announced its judgment; that upon receiving notice of such pronouncement he prepared a draft of findings of fact and conclusions of law and judgment and transmitted the same to Mr. Spalding; that he presumed that said Spalding had immediately filed said findings and judgment in accordance with the proposed draft, and said Spalding said no more thereafter about the matter to him, and he truly believed that his duties in said matter were at an end and that said Spalding had complied with the court's direction and had filed herein the proper findings and judgment in accordance with the direction of said court; that he has since ascertained that said Spalding immediately after the trial of said action became and was very ill and continued to be ill for some months, and thereafter said Spalding died, and he is informed, believes, and alleges that by reason of such illness and death said Spalding failed to file the findings and judgment herein; that more than a year following the date of said trial the attorneys for the plaintiff prepared and filed findings of fact and conclusions of law and judgment, and a copy thereof was served upon affiant as one of the attorneys of record; that affiant read said findings and judgment and immediately noted that the same were not at all in conformity with the judgment announced by the court; that he thereupon endeavored to locate the defendant James E. Brown by telephone and by letter, but the address of said defendant was not listed in any directory and after seaching for said defendant affiant was unable to find him, he thereupon directed a letter to the trial judge and pointed out to him that said findings and judgment were not in conformity with the judgment of said court; that the circumstances stated were brought about as a result of the illness and death of said Spalding, and he believes that said judgment was rendered through mistake, inadvertence, and surprise of said defendants and their counsel.

The letter which Mr. Bassett addressed to the trial judge is dated May 12, 1937, and is as follows: “Findings drawn by C. P. Von Herzen have been left at my office. I drew findings a year ago in this cause and sent them to W. D. Spalding. Brown was his client and I was employed to try the case for Spalding. I do not know where Brown is and you know Spalding has been dead several months. I have no file. My recollection is that Von Herzen is not entitled to any such findings. VI and VII are pure bunk. Why Spalding did not close this case I do not know, except that his health became shaky, and he did only what he had to. (Signed) Wilbur Bassett.”

Affidavits of Thomas Reynolds and Sidney A. Cherniss, attorneys for defendants at the time of the motion in question here were presented, which affidavits add nothing material to the facts presented in the affidavits of defendant James E. Brown and Wilbur Bassett.

Defendant James E. Brown filed a supplemental affidavit in support of the motion to the effect that he did not at any time employ Wilbur Bassett but was advised by said Spalding that Wilbur Bassett had been employed by said Spalding to try said action; that he understood that Bassett's sole duties were to conduct the trial of said action but said Spalding was to retain charge of said case for and on behalf of defendants Brown; that all of the conferences and conversations were with Spalding, and on or about May 21, 1936, he paid Spalding the fees which he requested for the services rendered by him and the said Bassett in the trial of the action; and that the plaintiff, Blanche Comstock, died on or about the 3rd day of July, 1937.

Wilbur Bassett also filed a supplemental affidavit stating, in addition to the matters set forth in his prior affidavit, that he was employed in said matter by W. D. Spalding for the purpose of conducting the trial of said action; that he was not employed by the defendants James E. Brown and Margaret Brown and had no authority whatsoever from them, but was called in by Spalding only for the purpose of trying the action; that pursuant to his employment he conducted the trial of said action, and at the conclusion of said trial his employment was concluded; that said Spalding at all times retained charge of said action, and required no further services from affiant; that during the time he was engaged in connection with said action the defendant James E. Brown at one time stated to him that said defendants had a contract with said Spalding relative to legal services in the matter, which contract said Brown proposed to stand on; that under such circumstances he had no authority whatsoever to represent the defendants Brown at the conclusion of the trial of said action, and when the proposed findings and judgment were served upon affiant by the plaintiff's attorneys in 1937, affiant had no authority to proceed in the absence of specific instructions from Brown, and that affiant was unable to find said Brown and obtain such authority; that Brown's remarks to him had been of such character as to lead him to believe that Brown looked solely to Spalding and he did not know what Brown would desire to have done and he had no authority to represent said Brown.

Near the conclusion of the presentation of evidence on the part of defendants in support of the motion, Mr. Sidney Cherniss, one of the attorneys for defendants, said that defendants had no desire to press the charge of fraud against counsel personally.

In opposition to the motion, the affidavit of C. P. Von Herzen was presented and in which it was stated that at all stages of the proceedings had in said action, he, C. P. Von Herzen, had dealt with Wilbur Bassett as attorney representing the defendants, James E. and Margaret Brown; that said attorney appeared at the hearing of the original demurrer, which was sustained, and that thereafter said attorney appeared at the hearing of the demurrer to the second amended complaint, which was overruled. All papers, notices, amended complaints and other documents served in connection with said litigation were served upon said attorney Wilbur Bassett. The cover of the answer served upon him following the overruling of the demurrer to the second amended complaint bears the following: “Wilbur Bassett, Attorney–at–Law, 900 Van Nuys Building, Los Angeles”; that at no time, until the trial of the action, did affiant meet or have any conversation with W. D. Spalding, one of the attorneys of record for the said defendants, and in the trial of said action said W. D. Spalding took no active part in the questioning of witnesses, the argument to the court, nor the various motions and arguments made during the trial of the cause; that the copy of the notice of trial served upon affiant was signed “Wilbur Bassett, Attorney for defendants Brown, et ux.” Telephone conversations had concerning the deposition of the plaintiff were had by him with the said Wilbur Bassett and, so far as he can now remember, no conversation of any kind or character, or communication by letter, or otherwise, was had with the other attorney for the defendants, W. D. Spalding; that following the trial of the case, he conferred with the clerk of the court concerning the judgment arrived at by the court and on that occasion the presiding judge of said cause advised him that he should await the filing of findings regarding discussion of certain phases of said action, and that at that time he would be glad to go into said phases which affiant desired to have considered; that he awaited the filing of findings approximately one year and finally, no findings being filed, he prepared and served upon said Wilbur Bassett proposed findings of fact and conclusions of law and judgment, and had the same filed with the clerk of the court for presentation to the trial judge; that approximately ten days thereafter he stopped at the courtroom and talked to the clerk of the trial judge and was at that time informed that a communication had been received from said Wilbur Bassett stating that certain of the findings, as prepared by him, were “pure bunk”; that he had prepared proposed findings of fact and conclusions of law and sent them to W. D. Spalding, who had died in the interim and that he did not know what had happened to said proposed findings, conclusions, and judgment; and he did not know how to get in touch with defendants Brown; that the judge thereupon informed affiant that he would await the submission of the other findings which would probably be forthcoming in a few days and that thereupon which findings the court was going to sign would be ascertained; that said findings, conclusions, and judgment were prepared, served, and filed by affiant on or about the 2nd or 3rd day of May, 1937; that nothing was done by the court, following the receipt of said letter about the 10th or 15th of May, 1937, until on or about June 4, 1937, when the trial judge signed the findings, conclusions, and judgment as proposed by affiant and on said day the clerk of said court mailed a postal card to said Wilbur Bassett, stating that said findings and judgment were signed and filed on said day. Thereafter, and on or about the 9th day of June, 1937, affiant prepared a notice of entry of judgment, caused the same to be served upon said Wilbur Bassett, and filed it in the records of the above entitled court, which said notice stated that judgment was entered in favor of the defendants, James E. and Margaret Brown, upon their promissory note and against said defendants upon their deed; that affiant at no time received any communication from said Wilbur Bassett with respect to any of the matters concerning the findings of fact, conclusions, and judgment proposed by affiant and subsequently signed by the trial judge, either by mail, telephone, or otherwise, and, as far as affiant knows, said Wilbur Bassett made no attempt whatsoever to communicate with him in any way; that no motion for new trial, or notice of intention to make such motion, nor a motion to set aside and vacate the judgment, nor for a new and different judgment has ever been served upon him; that no notice of appeal has ever been filed or served upon him and no steps of any kind or character taken by the attorney for the defendants to in any way indicate that he was not satisfied with the judgment as entered; that the findings, conclusions, and judgment prepared by him were his understanding of the judgment as the court desired to have the matter and he prepared the same as he believed the court determined the issues and controversy between the parties to the action; that said findings of fact were submitted by him to the court pursuant to what he understood the court desired to do in determining the case; that following the receipt of the letter by the court from Wilbur Bassett, the trial judge informed the clerk of the court and affiant that he was going to await a reasonable time to see what the defendants were going to suggest by way of amendments to said findings, or if they were going to submit different findings; that approximately two or three weeks thereafter affiant was informed by the trial judge, while riding in the elevator in the Hall of Records, that he had determined to sign the findings submitted by affiant.

George C. Wood submitted an affidavit in opposition to the motion and stated that he was one of the attorneys for plaintiff in the above entitled action; that he was present during the trial of said cause and had various dealings with the attorneys for defendants, James E. and Margaret Brown, during said trial; that all of his communications were had with Wilbur Bassett and none of them with W. D. Spalding; that affiant was informed and believed that Wilbur Bassett was handling the entire case; that said Wilbur Bassett appeared at the hearing on the demurrers and conducted the trial of said cause; that said Wilbur Bassett had appeared at the time of the taking of the deposition of the plaintiff and the controversy arising with respect to the signing thereof was with Wilbur Bassett; that a proposed settlement of the case was discussed by affiant with said Wilbur Bassett following the taking of said deposition, and at no time did the said Wilbur Bassett indicate in any way that he was not in complete and actual charge of the entire case; that the only time affiant saw or had any conversation with said W. D. Spalding was during the trial of said action, at which time said W. D. Spalding sat in with said Wilbur Bassett, but took no part in the trial of the case, or in the arguments presented to the court; that W. D. Spalding died on December 18, 1936, more than seven months following the trial of the cause, and that public announcements of said occurrence appeared in the public press and in the legal publications, the Los Angeles Daily Journal, Los Angeles News, and several other similar publications devoted to the publication of legal news; that the March, 1937, issue of the Southern California Telephone Directory lists the name and address of the defendants as follows: “Margaret Brown, r. 422 S. Bedford Dr., Bev. Hls, Crstvw. 14268”; that affiant on August 25, 1937, went to the address given by the defendants, James E. and Margaret Brown, at the time of the trial, 1136 Hauser street, Los Angeles, California, and there ascertained that they had left a forwarding address to 422 S. Bedford drive, Beverly Hills. At the Beverly Hills address affiant found the defendants, James E. and Margaret Brown, and upon stating that he was there for the purpose of ascertaining whether they could be found he was informed by James E. Brown that anyone who wanted him could find him and that he was available at all times. The trial judge and the court clerk did not present and file affidavits.

From the transcript it appears that after submission of the motion but before the court ruled thereon, plaintiff's attorneys informed the court of the appointment of S. B. Bastajian as administrator with the will annexed of Blanche H. Comstock, deceased, and on or about September 7th of 1937, said S. B. Bastajian was substituted as plaintiff in the action. Following submission of the motion the court made an order granting the motion.

It is not contended that the minute entry ordering judgment for defendants was the decision of the court; also, it seems to be conceded that even though the trial judge may indicate what his decision will be, he may change his mind as many times as he chooses before signing and filing his findings of fact and conclusions of law. In the case of Phillips v. Hooper et al., Cal.App., 111 P.2d 22, 23 it is said: “Appellant further contends that the statements made by the trial court, during the trial, indicate that the court had an erroneous theory of the case, and based its judgment on this erroneous theory. It has been held that the findings of fact must be taken as embodying the conclusions of the trial court on all questions of fact submitted to it for decision. Goldner v. Spencer, 163 Cal. 317, 125 P. 347. And no antecedent expressions of the judge can in any way restrict his absolute power to declare his final conclusion, in the only manner authorized by law, to wit, by filing his ‘decision’ (findings of fact and conclusions of law), provided in sections 632 and 633 of the Code of Civil Procedure. Scholle v. Finnell, 173 Cal. 372, 159 P. 1179; Fisk v. Casey, 119 Cal. 643, 51 P. 1077; Montecito Valley Co. v. Santa Barbara, 144 Cal. 578, 77 P. 1113; Risinger v. Anderson, 10 Cal.App.2d 455, 51 P.2d 1119.”

The motion to set aside the findings and judgment was based upon section 473 of the Code of Civil Procedure, and it is also contended by respondents that the court has inherent power, aside from the authorizations contained in said section, to vacate and set aside its findings and judgment under the circumstances disclosed herein. Many authorities have been cited in support of the contention of respondent and it is urged that, under the circumstances appearing, a clerical error occurred in the signing and filing of the findings and judgment. In view of the conclusion we have reached we deem it unnecessary to discuss these authorities, as we are satisfied that the signing of the findings and conclusions of law and judgment by the court constitute judicial acts. It is not questioned that, where proper circumstances are made to appear, power rests in the court to vacate and set aside its findings and conclusions of law and judgment entered thereon where the court is satisfied that, under the showing made, such circumstances appear. The affidavit of Wilbur Bassett shows neglect, but does not show that neglect which is sufficient to support the action here taken under said section 473, and also it does not show such circumstances as would evidence inherent power in the court sufficient to authorize the making of the order from which this appeal is taken.

The affidavit of respondent James E. Brown shows a mistake as to the law governing in matters such as we have here, based upon the information which he stated was given to him by Mr. Spalding. It seems hardly possible that Mr. Spalding, a practicing attorney, would have so informed Mr. Brown, in the light of the fact so well known to every practicing lawyer, that after a court has announced its intended decision, that submission of findings of fact and conclusions of law and judgment are necessary, that generally a motion for a new trial is made and that, following its disposition, there may be an appeal; but whether Mr. Brown was mistaken or misinformed, in the view we take we deem such fact immaterial to a determination of the question presented on this appeal. It is established that the findings of fact and conclusions of law and judgment prepared and submitted to the trial judge were in his hands for more than ten days, that they were served upon Mr. Bassett, and that the letter written to the trial judge stated that Mr. Spalding was deceased and that two paragraphs of the findings submitted by Mr. Von Herzen were “pure bunk”; that the trial judge stated that he was holding the findings for a reasonable length of time to afford opportunity for submission of amendments or proposed new findings, and that he would sign findings, conclusions and judgment submitted unless amendments or different findings were proposed; that no amendments or additional, or other findings were proposed or submitted and that, after a lapse of approximately two weeks, he signed and filed the findings which had been submitted to him through the clerk by Mr. Von Herzen.

Under these circumstances it appears to us that the cases of Stevens v. Superior Court, 7 Cal.2d 110, 59 P.2d 988; Owen v. Crocker–Huffman L., etc., Co., 38 Cal.App. 649, 177 P. 299, and King v. Superior Court, 12 Cal.App.2d 501, 56 P.2d 268, are determinative of the question here involved. In the case of Stevens v. Superior Court, supra, 7 Cal.2d at page 112, 59 P.2d at page 989, it is said:

“The contention that the minute entry made by the clerk is controlling rather than the written formal order of the court cannot be sustained. Bailey v. Superior Court, 215 Cal. 548, 11 P.2d 865; Willis v. Superior Court, 214 Cal. 603, 7 P.2d 303; Rose v. Superior Court, 140 Cal.App. 418, 35 P.2d 605. The question, therefore, is whether the recitals disclose an inadvertence or mistake which the court had power to correct of its own motion or on ex parte application.

“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. Freeman on Judgments, vol. 1, page 432, § 220; Drinkhouse v. Van Ness, 202 Cal. 359, 260 P. 869; Holtum v. Greif, 144 Cal. 521, 78 P. 11; Egan v. Egan, 90 Cal. 15, 27 P. 22; Wiggin v. Superior Court, 68 Cal. 398, 9 P. 646.

“We are of the opinion that the instant case presents an attempt to correct judicial error, even though the trial court recites that the first order was made by inadvertence. It appears that the inadvertence consisted of misinterpreting and misconstruing a waiver of all claims to a new trial, other than on the issue of damages, as a waiver of all grounds upon which a new trial was claimed on that issue, except the ground of the insufficiency of the evidence. Both the first and second orders recite that the motion was denied because the court so understood the waiver, that the court was of the opinion that the plaintiff was entitled to a new trial on the ground of the giving of an erroneous instruction. The second order recites that this construction of the waiver was the result of oversight, neglect, accident, and mistake in the reading of the waiver and in the conclusion as to its effect; that upon a further reading it appeared the waiver did not operate to waive any ground previously urged. This is not a case where the order as entered by the clerk is not the order made by the court (Lauchere v. Lambert, 210 Cal. 274, 291 P. 412; People v. Curtis, 113 Cal. 68, 45 P. 180; Kaufman v. Shain, 111 Cal. 16, 43 P. 393, 52 Am.St.Rep. 139; Robbins v. Jenkins, 9 Cal.App.2d 580, 581, 50 P.2d 826; Beall v. Erickson, 113 Cal.App. 36, 297 P. 960); * * * where there was an irregularity which made the order or judgment premature (Whitney v. Superior Court, 147 Cal. 536, 82 P. 37; Harris v. Minnesota Investment Co., 89 Cal.App. 396, 398, 265 P. 306; Burbank v. Continental Life Ins. Co., 2 Cal.App.2d 664, 38 P.2d 451; nor where the court was ignorant of some fact material to the action taken by it (Watkins v. McCartney, 70 Cal.App. 137, 232 P. 982). The situation here more closely approaches the cases of Egan v. Egan, supra; Coombs v. Hibberd, 43 Cal. 452, and Owen v. Crocker–Huffman L. & W. Co., 38 Cal.App. 649, 177 P. 299, in all of which it was held that, all of the matters before the court at the time of the making of the second order having been considered by it at the time of the making of the first order, it cannot, simply because upon a re–examination of the same matters it has reached a different conclusion, give effect to the second determination of the same issue by modifying or annulling the original order or judgment. This is judicial error and is subject to review only upon appeal, the same as any other mistake due to a failure to give proper consideration to a bit of evidence or to the effect of evidence. ‘Misapprehension as to the nature and extent of the testimony or of the effect of the testimony is not inadvertence,’ according to Owen v. Crocker–Huffman L. & W. Co., supra. Paraphrasing this language, we must say that misapprehension as to the effect of the waiver is not inadvertence”.

In the case of Owen v. Crocker–Huffman, etc., supra, 38 Cal.App. at page 652, 177 P. at page 300, it is said: “Misapprehension as to the nature and extent of the testimony or of the effect of the testimony is not inadvertence. To warrant a practice by which the trial court, after an order has been regularly and deliberately entered, could after reflection for a day, re–examine or recall the testimony and reach a different conclusion and set aside his order, thus regularly and deliberately made, would introduce a most dangerous rule. The reason for making the order can mean nothing less than that upon a re–examination of the testimony the court has reached a different conclusion. * * * If, as has been held, orders or judgments may be set aside when entered prematurely or by inadvertence, it should be, it seems to us, on a proper showing. ‘The term “inadvertence,” in Code sections 4501, 4502, allowing the Supreme Court after the term to vacate or correct mistakes in judgments given through inadvertence or oversight, does not apply to any judgment which was given upon the deliberate consideration and judgment of the court, though the court may have since adopted a different ruling as correct. It will be seen that the case provided is where judgment is given through inadvertence or oversight, and not where an opinion is formed from inadvertence and oversight.” Russell v. Colyer, 51 Tenn. 154, 4 Heisk. 154, 176; 20 Words and Phrases, Permanent Edition, p. 376.

The record herein is absolutely devoid of any showing of fraud. Therefore, the finding of fraud by the trial court in its order is solely its conclusion. Concerning the matter of fraud under circumstances as claimed herein, we think that the question is determined by the case of King v. Superior Court, supra, where at page 513 of 12 Cal.App.2d, at page 274 of 56 P.2d, it is said:

“We conceive the correct rule to be applied to cases of this kind is that a court has inherent power and jurisdiction to vacate, on motion, an order or judgment obtained by extrinsic fraud, but, if such fraud is not proved, it must be held to have exceeded its jurisdiction in vacating an order or judgment. Upon a proper application being filed, it had the power to inquire into the existence of extrinsic fraud, but, upon the entire failure of any proof of such fraud, any action taken which could only be supported by its existence was in excess of its jurisdiction and subject to annulment in a proceeding of this kind.

“A judgment of dismissal is reviewable on appeal, and, except on a proper showing and in a recognized manner, it cannot be vacated in the trial court. An attempt to do so is beyond the power of the trial court. Holtum v. Greif, 144 Cal. 521, 78 P. 11; Robinson v. Southland Produce Co., 112 Cal.App. 106, 296 P. 303; Kaufman v. Superior Court, 115 Cal. 152, 46 P. 904; Hopkins v. Superior Court, 136 Cal. 552, 69 P. 299.”

Unquestionably, in a matter of this kind, the knowledge of the trial court can be a controlling factor where corrections, amendments, and other changes are required to the end that the court's orders, judgments, and decrees may truly speak the court's determination, but in this particular instance here involved and where the evidence clearly and without contradiction establishes that the court's declarations in the order vacating and setting aside the findings of fact and conclusions of law and judgment are not only unsupported by the evidence but are contrary to the evidence, the declared knowledge of the court becomes only its unsupported conclusion. At the time the trial judge signed the findings of fact and conclusions of law and judgment and caused them to be filed he had had them before him for a period of over ten days and had ample time for deliberation and determination as to whether he should make his decision in accordance with the findings of fact and conclusions of law submitted to him.

The affidavit of Mr. Von Herzen, which is uncontradicted, establishes the fact that the trial judge was giving the matter of the signing of the findings of fact and conclusions of law his consideration, and Mr. Bassett's letter to the trial judge, and which he undoubtedly received, called his attention to the fact that defendants, through Mr. Bassett, were objecting to the findings of fact and conclusions of law and judgment as submitted by Mr. Von Herzen.

Under these circumstances, any inquiry as to whether the trial judge remembered the evidence at the time he made his decision, which was the signing and filing of the findings of fact and conclusions of law, becomes immaterial. As was said in the case of Stevens v. Superior Court, supra, 7 Cal.2d at page 114, 59 P.2d at page 990: “This is judicial error and is subject to review only upon appeal, the same as any other mistake due to a failure to give proper consideration to a bit of evidence or to the effect of evidence,” and as was stated in Owen v. Crocker–Huffman L. & W. Co., supra, “misapprehension as to the nature and extent of the testimony or of the effect of the testimony is not inadvertence.”

This is not a case where judgment was given through inadvertence or oversight but rather it is one where an opinion has been formed from inadvertence and oversight. Therefore, neither such inadvertence nor mistake may herein be successfully urged. Also, the record is absolutely devoid of any showing of fraud of any kind or character, and the trial court in its order should not have made the finding of fraud contained therein.

We conclude, for the reasons hereinabove set forth, the trial court erred in vacating and setting aside the findings of fact and conclusions of law and judgment, and its order must be and it is reversed.

MONCUR, Justice pro tem.

We concur: THOMPSON, Acting P. J.; TUTTLE, J.