SPIER v. LANG (1935)

These are three separate actions consolidated for trial and appeal. Each complaint alleges that the defendants, respondents here, were partners in an oil venture, and sets forth causes of action upon common counts for drilling equipment sold to the partnership and its partners. Trial was had and resulted in judgments for the amounts claimed in favor of each plaintiff and against defendant Lang and certain of his codefendants. Findings of fact, conclusions of law, and judgment were signed and filed in each case on June 8, 1932, and judgment in each of the cases was docketed and entered on June 9, 1932. Thereafter written notice of entry of judgment was served upon each of said defendants by plaintiffs and filed; such service and filing occurring between June 11 and June 18, 1932. Each of the defendants against whom a judgment was rendered filed his notice of intention to move for new trial, which notices were served and filed between the dates of June 7 and June 18, 1932.

Motions for new trial were argued on July 27, 1932, at which time they were submitted, and on August 3, 1932, the following minute order was made: “Motion for a new trial by certain defendants, heretofore submitted on July 27, 1932, is now by the Court denied. Judgments are modified to be against C. D. Lang, only.” No order of any kind was made respecting a change in the findings until on September 13, 1932, more than 60 days after the filing of the notices of intention to move for new trial, when a formal order was made which was signed under the caption: “Done in Open Court this 3rd day of August, 1932,” requiring, among other things, preparation and entry of new findings of fact and conclusions of law, and a judgment pursuant thereto. In spite of the fact that the order recites that it was “done in Open Court this 3rd day of August, 1932,” it is stipulated that the order was in fact signed and filed on September 13, 1932. New findings of fact and conclusions of law and judgments were filed at the same time, to wit, September 13, 1932, which had the effect of reversing the judgments previously rendered in favor of plaintiffs and against the defendants other than C. D. Lang. Plaintiffs made motions for new trials in respect to these second judgments, and also made motions to vacate said purported judgments and said purported findings of fact and conclusions of law, all of which motions were by the court denied. The plaintiffs appeal from the portion of the second judgments providing for the filing of the second judgments and the vacation of the first judgments and denying the recovery against defendants other than Lang, and providing that said defendants have their costs of suit, and also appeal from the orders denying the motions for a new trial made by the plaintiffs, and the orders denying their motions to vacate and strike from the files the second judgments and the second findings of fact and conclusions of law.

The decisive question on this appeal is whether, having denied a motion for a new trial, the trial court could, in an order denying such motion, effectually add another order modifying the judgment as to all defendants except C D. Lang, the effect of which additional order is to reverse the first judgment in favor of all defendants except C. D. Lang.

There is no contention and no issue raised, nor would the facts support one, that the original judgment was void on its face or that it was void by reason of extrinsic fraud, or that it should have been set aside under section 473, Code of Civil Procedure, or that it was the result of a clerical error or misprision. Obviously, therefore, there are only three ways of interfering with judgments regularly entered, as stated, which are: By motion for new trial, by motion pursuant to sections 663 and 663a, Code of Civil Procedure, to set aside and vacate the judgment and enter a different judgment because the findings already made will not support the judgment theretofore entered on such findings; and, finally, by appeal.

It is patent that the respondents did not appeal from the original judgments, and an examination of the record discloses that the motions made to effectuate a change in the judgments were motions for a new trial and not motions under sections 663 and 663a, Code of Civil Procedure.

The moving papers in each case are designated “notice of intention to move for new trial.” They are in the usual form of such motions made on statutory grounds classified for such motion, and the trial court in its minute order speaks of them as motions for a new trial. Furthermore, an examination of the papers in each case demonstrates that they were, and were intended to be, motions for new trial, and nothing more. In a motion made under sections 663 and 663a, Code of Civil Procedure, a party, in addition to setting out the usual requisites of a motion, must specify the particulars in which the conclusions of law are inconsistent with the findings of fact. Stanton v. Superior Court, 202 Cal. 478, 486, 261 P. 1001. The language used in the Stanton Case is particularly appropriate and applicable to the facts here. In the Stanton Case the court says (202 Cal. 478, at page 486, 261 P. 1001, 1004): “The notices before us set forth no particulars wherein the conclusions of law or judgments do not follow logically from the findings of fact. In fact, the conclusions of law are not attacked and are not even so much as mentioned in the notices. Likewise the notices give no indication of the judgment or judgments sought to be substituted for the original judgment entered. Neither do they contemplate an order contemporaneously given vacating the judgment and establishing a new one in its stead. Nor do they contemplate an order entering a new judgment as an integral part of the order vacating the old one. None of the proceedings taken and none of the orders in question can properly be identified as procedure authorized by or contemplated by said sections of the Code. The limits set by these sections cannot be transgressed.”

Finally, it is demonstrated, if any further evidence were necessary, that the motions cannot be considered as having been made under said Code sections, since the trial court made, signed, and filed an entirely new set of findings, as well as a new judgment, on September 13, 1932. It is thoroughly settled that this cannot be done pursuant to a motion made under these sections, quoting again from the Stanton Case, 202 Cal. 478, pp. 487, 488, 261 P. 1001, 1004: “The sections in no case authorize an attack upon the findings of fact and this is the essence of the attack attempted here. * * * The only mode under our system by which findings of fact may be disturbed by the trial court after they have been filed and judgment has been entered thereon, ‘except perhaps in respect of a mere clerical error or misprision,’ is by the granting of a new trial. * * * The order of December 16, 1911, purporting to change one of the findings of fact, was therefore ineffectual for any purpose. It, of course, in no way affected the judgment given and entered long prior thereto, and no new findings or judgment could be legally filed or made.”

We have been at some pains to determine what the notices were, not so much to decide what they were intended to be, for it is obvious that they were intended to be motions for new trial, but to discover, if possible, a principle of construction or interpretation which would permit a classification of the trial court's additional order modifying the judgment after denying motion for new trial, which would warrant an affirmance thereof. From what has been said, unless the trial court has authority to make an order of the kind in question in acting on the motion for a new trial, it does not have it at all when predicated on facts such as those in the case at bar.

Section 662 of the Code of Civil Procedure, speaking with reference to the court's authority on motion for new trial, uses broad and general language. That section says: “In ruling on such motion, in a cause tried without a jury, the court may, on such terms as may be just, change or add to the findings, modify the judgment, in whole or in part, vacate the judgment, in whole or in part, and grant a new trial on all or part of the issues, or, in lieu of granting a new trial, may vacate and set aside the findings and judgment and reopen the case for further proceedings,” etc.

In order to understand the language of the Code section, it must be read in the light of generally accepted and settled legal principles and limited by them. It may not be amiss, therefore, to collate some of these principles for the purpose of forming an accurate perspective.

Unless they have been waived, findings must be made in a trial before a court without a jury (section 632, Code Civ. Proc.), and there is no question but that a judgment may be set aside when it appears that no findings were made and that findings were not waived. Van Court v. Winterson, 61 Cal. 615; Mace v. O'Reilley, 70 Cal. 231, 11 P. 721; Prothero v. Superior Court, 196 Cal. 439, 238 P. 357; Hardy v. Frey, 49 Cal. App. 551, 196 P. 92; Williams v. Leon T. Shettler Co., 98 Cal. App. 282, 276 P. 1065; Savings & Loan Society v. Thorne, 67 Cal. 53, 7 P. 36.

It is settled, too, that a court may change its findings any time before entry of judgment without ordering a new trial. Spaulding v. Howard, 121 Cal. 194, 198, 53 P. 563; Smith v. Taylor, 82 Cal. 533, 23 P. 217.

It is also true that no trial is complete until the court has rendered its decision in writing (section 632, Code Civ. Proc.), and filed the same with the clerk of the court (Broder v. Conklin, 98 Cal. 360, 33 P. 211). It should be kept in mind, however, that there are well-defined differences between findings of the court, decision of the court, and judgment of the court, and that the authority of a court is more or less, depending upon at what stage of a lawsuit the court has acted.

In Broder v. Conklin, supra, 98 Cal. 360, pages 362, 363, 33 P. 211, 212, the court says: “Section 633, Code of Civil Proc., requires the court, in giving the decision, to state the facts found and the conclusions of law separately, and provides that, after the decision has been given, judgment must be entered ‘accordingly.’ The judgment which is to be entered ‘upon the decision’ is the sentence of the court in conformity with the conclusions of law, and must find its basis therein. Chamberlain v. Dempsey, 14 Abb. Prac. [N. Y.] 241; [Id.] 15 Abb. Prac. [N. Y.] 1; Loeschigk v. Addison, 19 Abb. Prac. [N. Y.] 169; Belmont v. Ponvert, 3 Robt. [26 N. Y. Super. Ct.] 693. The conclusions of law resulting from the facts found form the basis of the judgment, and until they have been made the decision of the case has not been given. The findings of fact are in the nature of a special verdict, and the conclusions of law to be drawn therefrom need not be made at the same time with the findings themselves, but may be reserved by the court for argument or further consideration, as is provided in the case of a special verdict in section 628, Code Civil Proc., and, if made at the same time with the findings of fact, they may be changed by the court at any time prior to the entry of judgment. Condee v. Barton, 62 Cal. 1; Crim v. Kessing, 89 Cal. [478] 489, 26 P. 1074 [23 Am. St. Rep. 491]. Inasmuch, therefore, as the judgment is to be entered ‘upon the decision,’ and must find its basis in the conclusions of law, which are to be a part of the decision, it follows that the trial of the action is not completed until a decision has been given which states the conclusions of law upon which the judgment is to rest.”

It has been definitely held that, after entry of judgment, a trial court cannot change its findings “without granting a new trial, and doing it upon new trial.” Smith v. Taylor, 82 Cal. 533, 544, 23 P. 217, 219. (Italics ours.) In the foregoing case, 82 Cal. 533, at page 544, 23 P. 217, 219, in considering an analogous situation, the court said: “Both sets of findings were filed before judgment. Both are brought up to this court. Either is sufficient to support the judgment, and there is nothing in either that conflicts with the other in any matter material to the issues in the cause, or the judgment entered. While it is true that a court cannot change its findings after the entry of judgment without granting a new trial, and doing it upon new trial, it does not follow that it may not make such modification or correction of its findings before judgment as shall make them conform to the truth, and cover the issues in the cause.” (Italics ours.)

While section 662 of the Code of Civil Procedure apparently gives the court power on a motion for new trial to change or add to the findings, modify or vacate the judgment in whole or in part, vacate and set aside the findings, we have been cited to no case in which this has been done unless a new trial has been granted, except Holland v. Superior Court, 121 Cal. App. 523, 9 P. (2d) 531, wherein it appears to have been done. However, the question was not raised in the Holland Case, and the court, speaking with reference to section 662, expressly withheld its opinion as to whether or not it correctly stated the law. An abundance of authority indicates that the principle laid down in the early case of Smith v. Taylor, supra, that such action can be taken by a trial court only upon granting the motion for a new trial and then only in the new trial, is the law. Stanton v. Superior Court, 202 Cal. 478, 487, 261 P. 1001; Hole v. Takekawa, 165 Cal. 372, 376, 132 P. 445; Herz v. Hereford, 88 Cal. App. 290, 263 P. 382; Smith v. Sharp, 70 Cal. App. 336, 233 P. 374; County of Los Angeles v. Lankershim, 100 Cal. 525, 532, 35 P. 153, 556; 24 Cal. Jur. p. 1005, § 226, note 11.

It follows from the above that findings of fact standing alone do not constitute a decision or a judgment, and may be changed at any time before the decision or entry of judgment; that findings of fact, together with conclusions of law, constitute the decision of the court, as distinguished from a judgment, and that either or both may be changed at any time prior to the entry of judgment. When, however, the judgment has been entered, findings can never be changed except and unless a new trial is ordered, and then only as a result of a new trial. Conclusions of law and the judgment, however, may be changed, modified, and vacated after entry of judgment and different conclusions made, and a different judgment entered on findings as they already exist, pursuant to sections 663 and 663a of the Code of Civil Procedure.

It must be clear, therefore, that, if that portion of the minute order of the trial court made after denying a motion for a new trial is considered as a judgment, it is void, because, first, there not only are no findings to support it, but the only findings extant are inconsistent with it; and, second, the court had no authority to grant a new judgment in that manner on a motion for a new trial. If it be considered a direction to prepare new findings and new judgment appropriate to what the court was trying to do and not what the court said, it is void, because the order does not direct the preparation of new findings, and could not in any event, unless a new trial were granted; if it be considered as an order granting the motion for new trial to the defendants affected, it is immediately torn asunder, first, because the new trial was denied, and, second, because a new trial was never had.

Because of our view of the situation presented, it is unnecessary to express an opinion on the question raised and discussed in the briefs as to whether the new findings and judgments signed and filed on September 13, 1932, were of any validity because they were not signed and filed within the 60-day period. In our view of the matter, if they had been signed within the 60-day period, they would have no validity.

The orders purporting to modify the original judgments are annulled. The orders directing new findings and new judgments in lieu of the old findings and judgments are annulled. The new findings and new or second judgments are annulled and set aside.

ROTH, Justice pro tem.

I concur: YORK, J. I concur in the judgment: HOUSER, Acting P. J.