SNAPP v. STATE FARM FIRE AND CASUALTY COMPANY (1963)

This is the second appeal in this action. In 1959, plaintiffs filed an action for declaratory relief against defendant insurance company, seeking to define their rights under a policy issued in their favor by defendant. After a trial without a jury, plaintiffs recovered judgment for $8,168.25 together with costs (ultimately fixed at $130.79). This judgment was duly entered on October 31, 1960. Both parties appealed, plaintiffs contending they were entitled to recover a larger sum and defendant contending the policy did not insure against the risk involved (damage from landslide). On appeal it was determined that plaintiffs were entitled to recover the face amount of the policy ($25,000.00). (Snapp v. State Farm Fire & Casualty Co. (1962) 206 Cal.App.2d 827, 24 Cal.Rptr. 44.) The formal order of this court was couched in the following terms:

‘[T]he judgment is reversed with directions to enter judgment for plaintiffs in the amount of $25,000.00.’

Petitions for rehearing and for hearing by the Supreme Court were filed and denied.

On the going down of the remittitur, plaintiffs moved for entry of judgment in their favor in the amount of $25,000, plus costs (including costs on appeal), together with interest on the sum of $25,000 from the date of the original judgment. After a hearing, the court entered judgment for $25,000 together with the accumulated costs, but allowed interest only from the date of entry of the new judgment (November 23, 1962), the judgment reciting that it was ‘without prejudice to the rights of plaintiffs SNAPP to appeal from the denial of interest from the date of entry of the original judgment.’ The present appeal followed.

Plaintiffs now contend that they are entitled to interest on the sum of $25,000 from a date sixty days after they had filed their formal proofs of loss with the defendant—i. e. from January 15, 1960,—or in the alternative from the date of the original judgment.

The claim for interest from a date sixty days after formal proofs of loss were filed is clearly without basis. It was made by plaintiffs for the first time in their notice of appeal, and, at no time, either in the original trial, on the first appeal, or in the motion for judgment after the remand, was it ever submitted to the trial court or to this court for determination. It is well settled that a claim thus delayed in its presentation is barred. (3 Witkin, California Procedure, p. 2261.)

The contention that interest should have been allowed from the date of the original judgment, while raised in the trial court, is without merit under the circumstances of this case. It is true that, where an appellate court modifies a money judgment, interest runs on the judgment as so modified from the date of original entry. (Beeler v. American Trust Co. (1946) 28 Cal.2d 435, 170 P.2d 439; Barnhart v. Edwards (1900) 128 Cal. 572, 61 P. 176; Clark v. Dunnam (1873) 46 Cal. 204; Niles Sand, Gravel & Rock Co. v. Muir (1921) 55 Cal.App. 539, 203 P. 1009.) But where, as in this case, the appellate court does not modify but reverses, the result is different. A reversal, with or without directions, vacates the judgment appealed from and there is then no judgment of the trial court unless and until a new judgment is entered in conformity with the remittitur. (Cowdery v. London and San Francisco Bank, Ltd. (1903) 139 Cal. 298, at page 304, 73 p. 196 at page 197.) As was said in the case last cited:

‘We are bound to assume that this court in this case acted advisedly and deliberately, and had good reason for ordering a reversal rather than a modification and affirmance. The part of the order directing the entry of a new judgment related solely to the proceedings after the reversal and the return of the case to the court below, and was not intended to, nor could it, change the reversal to a mere modification. Neither can the fact that it may now appear to us that the same result could have been reached by a modification justify this court in now changing the effect of the mandate.’

Stockton Theatres, Inc. v. Palermo (1961) 55 Cal.2d 439, 11 Cal.Rptr. 580, 360 P.2d 76, relied on by the plaintiff, is not helpful to him. That case recognized the authority of the Cowdery case, but distinguished it on the ground that an earlier and final order allowing ‘costs' supported the ultimate order fixing costs after a reversal of an intermediate order refusing to include a specific item. No such unique series of orders and judgments exists in this case.

The portion of the judgment appealed from is affirmed.

KINGSLEY, Justice.

BURKE, P. J., and JEFFERSON, J., concur.