DE LAO v. SUPERIOR COURT IN AND FOR LOS ANGELES COUNTY (1951)

Petitioner for writ of review was defendant in an action tried in the Superior Court. A jury was waived; the trial judge announced his decision, and directed that findings of fact be prepared, served and filed.

By way of return to the writ issued herein respondent court filed a general demurrer challenging the sufficiency of the facts stated to entitle petitioner to the relief prayed for.

In the trial court no findings were prepared or presented to the judge. Notwithstanding this, judgment against the defendant was signed, filed and entered.

When this situation was brought to his attention, the judge made an order vacating the purported judgment. He also ordered that defendant's motion for a new trial from that judgment go off calendar.

Thereafter findings were made, served and filed, and judgment followed. From this judgment defendant appealed, after his motion for a new trial was denied.

Defendant complains that the motion vacating the first judgment was made without notice to him, and argues that in any event the court had no power to make the order.

All that happened was that the court exercised its inherent power to set aside a judgment made through inadvertence. Phillips v. Trusheim, 25 Cal.2d 913, 156 P.2d 25; Raines v. Damon, 89 Cal.App.2d 812, 201 P.2d 886.

In such cases no notice to opposing counsel is required.

No substantial right of defendant has been in any manner trenched upon.

The demurrer is sustained, the writ heretofore issued is discharged.

DRAPEAU, Justice.

WHITE, P. J., and DORAN, J., concur.