MATHER v. MATHER (1943)

Plaintiff and certain defendants appeal from a final judgment, from an order granting a motion for entry thereof nunc pro tunc, and from an order denying a motion to set aside such judgment and the order granting entry thereof.

The facts necessary to a correct understanding of the respective positions of the parties involved may be chronologically recorded as follows:

On August 3, 1934, the plaintiff commenced this action for rescission of a certain property settlement agreement between himself and his former wife, the defendant Anna Inez Mather.

The complaint contained three counts for the relief sought: the first two were based upon fraud and misrepresentation, and the third rested upon the alleged invalidity of the agreement because of its having been made in the Territory of Hawaii at a time when, according to plaintiff's pleading, the laws of that jurisdiction did not permit a married woman to contract with her husband. The other defendants here appealing were joined in the action as administrators of the estate of Louis R. Greenfield, deceased, against which it was alleged plaintiff held an approved claim with an unpaid balance of $38,699, together with accrued interest. Part of the property transferred by the aforesaid agreement to the defendant Anna Inez Mather was a one-half interest in this claim. These defendant administrators filed an answer to the complaint herein to the effect that they held on account of the claim in question, and for whom it might concern, the sum of $12,549.60; and that various assignments and notices of assignment had been served upon them affecting the said fund, the defendant Anna Inez Mather, also known as Dorothy Devore Mather, being among the claimants thereto. The defendant administrators then averred in their answer that they were holding the said sum subject to the order and direction of the court, and they asked that they might be dismissed with their costs and released from all further liability toward the parties to the action and toward all claimants to the fund. This answer was in the nature of an interpleader.

Successive demurrers were effectively interposed to the third count of the complaint, and finally on December 24, 1934, after it had been thrice restated, a demurrer was sustained without leave to amend further. On January 4, 1935, and before trial of the other counts, a purported judgment was entered to the effect that the plaintiff take nothing by his third amended third cause of action. On February 7, 1935, plaintiff filed a notice of appeal from this purported judgment.

On February 18, 1935, the cause proceeded to trial upon the issues joined by the first and second counts of the complaint. At the conclusion of the trial the court found against the plaintiff and in favor of the defendant Anna Inez Mather. Among other facts, the court found that the plaintiff assigned and transferred to the defendant Anna Inez Mather a one-half interest in his title to the approved claim against the above-mentioned Greenfield estate. The trial court also found generally that the plaintiff and said defendant were intermarried on December 18, 1925, separated on June 10, 1933, and divided their property on June 16, 1933; that an interlocutory judgment of divorce of said marriage was entered on August 18, 1933; that at the time of the marriage of plaintiff and said defendant each was possessed of separate property, and during their marriage each contributed to their community property; that at the time of their separation the property of plaintiff and defendant was intermingled and consisted of their separate, community and joint property; that at the time plaintiff and defendant divided their property, June 16, 1933, such intermingled property was distributed between them by mutual consent, without fraud, undue influence or mistake on the part of either party, and such distribution was then and there wholly executed and completed. The trial court thereupon concluded that plaintiff should take nothing by reason of his complaint, that the answering defendants should have their costs, and that a temporary injunction theretofore allowed in the action should be and was dissolved. This injunction had served to restrain the estate in question and the administrators thereof from paying any further moneys to the defendant Anna Inez Mather under the assignment made by plaintiff of the one-half interest in his claim against the said estate. The findings of fact and conclusions of law were filed March 12, 1935. Judgment was then entered on March 14, 1935. However, this last document omits any reference to the previous disposition of the third count upon demurrer and on its face purports to be merely a judgment entered upon the findings and conclusions of the court at the close of the trial of the first and second counts of the complaint. Notice of appeal from this purported judgment was filed by the plaintiff on March 15, 1935.

The record discloses that the appeal from the ‘judgment’ on the first and second counts of the complaint was dismissed by this court on September 10, 1935, ‘for failure to file a transcript within the required time’; and that the ‘purported’ appeal from the ‘judgment’ on the third count was dismissed by this court on March 17, 1936. Mather v. Mather, 5 Cal.2d 167, 55 P.2d 1174. On December 7, 1939, defendants Anna Inez Mather and Lessie G. Williams (an interested party under the terms of the aforementioned property settlement agreement) made a motion for entry of a final judgment nunc pro tunc as of March 14, 1935, which motion was granted; and such a judgment was so entered on December 12, 1939. It is from this judgment that the appeal herein is taken, as well as from the order granting the motion to enter such judgment and from the order denying the motion to set said judgment aside.

Appellants contend that the motion for entry of the judgment nunc pro tunc was made upon insufficient notice; that the judgment was improper because the judge who ordered it entered was not even on the bench at the time the case was tried, and that he made new findings and changed the findings and conclusions previously rendered by the trial judge; that a nunc pro tunc entry of judgment may not be used to correct an erroneous judgment or to affect rights acquired in the interim; that neither the court nor the clerk may enter a judgment which does not conform to the order for judgment made by the trial court; that, moreover, the appeal taken from the ‘judgment’ upon the demurrer sustained as to the third count stayed all further proceedings in the trial court, and proceedings thereafter taken in the trial court during the pendency of the appeal are void. Appellants also contend that the trial court erred in sustaining the demurrer to the amended third count of the complaint.

The status of the two judgments, upon the third and upon the first and second counts, has already been considered by this court. Mather v. Mather, supra; Greenfield v. Mather, 14 Cal.2d 228, 93 P.2d 100, 103. Both decisions held in substance that the entry of such successive separate judgments constituted but piecemeal disposition of a single and unseverable cause; that the judgments in question were partial, not final, and hence nonappealable. The case of Greenfield v. Mather, supra, was an action in interpleader commenced by the estate of Greenfield to try the issue as to the respective rights of A. W. Mather, appellant herein, and his former wife, sued therein as Dorothy Devore Mather, respondent on this appeal, to the aforementioned sum of $12,549.60. In that proceeding said husband and wife joined issue by cross-complaints and answers. Under their respective pleadings the validity of the property settlement agreement as executed in Hawaii, the point involved in the present action, became the determinative factor. Specifically illustrative of this court's viewpoint that no final judgment was ever entered in the present action, though, according to the record, the trial court had made disposition of the issues, including the matter raised upon demurrer, by responsive rulings and findings, is the discussion of the situation as presented in the interpleader proceeding. In reversing therein by decision of August 21, 1939, the judgment entered in favor of the wife's claim to the fund involved upon the theory that the matter in issue was res judicata by virtue of the entry of the judgment of March 14, 1935, in the present action, this court stated at page 233 of its opinion: ‘Obviously that judgment (March 14, 1935) was in no better position than the judgment of January 4th. It disposed of the first two counts of the complaint, whereas the latter judgment disposed of the third count thereof. The reasoning which this court employed in determining the character of the one judgment (Mather v. Mather, supra), is equally applicable to fix the character of the other.

‘The fact that the judgment of March 14th was the second judgment to be entered did not cloak it with finality because it did not purport to embrace a final disposition of the entire cause. By express terms it was confined to only counts 1 and 2, and erroneously failed to include a recital with respect to the disposition of count 3. It did not affect count 3. The appeal from the purported judgment on that count was pending; that purported judgment, being void, was in effect no judgment. Therefore, if count 3 in fact stated a cause of action, that cause remained pending in the trial court after the entry of the judgment on counts 1 and 2.’

By the final judgment entered in this action on December 12, 1939, ‘nunc pro tunc as of March 14, 1935,’ in consequence of the motion therefor presented as aforesaid, it was adjudged that plaintiff take nothing by his complaint or any of the counts thereof; that the injunction theretofore issued should be dissolved as of February 27, 1935; that the answering defendants Anna Inez Mather and Lessie G. Williams have their costs; and that the Greenfield estate and its administrators pay to Anna Inez Mather the sum of $12,549.60, admittedly in their hands subject to the order and direction of the court. Examination of the findings originally made by the trial court reveals that the final judgment entered nunc pro tunc is substantially in accord therewith. There is no merit to appellants' argument that the final judgment is void because it provides for the payment to Anna Inez Mather of the sum alleged to be in the hands of the administrators of the Greenfield estate. The answer of these administrators placed this fund at the disposal of the court; and the court expressly found that plaintiff had assigned and transferred to Anna Inez Mather a one-half interest in his title to the claim against the estate. The discrepancy as to the proper proportionate division of this fund will be discussed later in this opinion as a matter for correction.

Likewise without force are appellants' contentions with regard to the changes made in the conclusions reached. ‘Where findings are filed, which constitutes the rendition of judgment, it has been repeatedly held that the court retains power to amend or change the conclusions of law so as to point to a different judgment, and to enter a judgment different from that first announced, and that this power continues until the entry of the judgment, and such change may be made by a judge other than the one who tried the cause. Until the judgment is entered the trial court retains complete jurisdiction of the case, of which it cannot be divested by any unauthorized appeal, and the mere fact that it has been affirmed on such an appeal does not prevent the subsequent entry of another and different judgment, since no jurisdiction was acquired by the premature appeal and the trial court still retained the power to make a different judgment.’ (Italics ours.) 14 Cal.Jur. 938, and cases there cited. The foregoing quotation serves to dispose of practically all of appellants' objections regarding both the entry of the final judgment and a stay of proceedings claimed to have been created by the premature appeal taken from the purported judgment upon demurrer to the third count. Moreover, with respect to this latter proposition, this court by its decision in Mather v. Mather, supra, dismissing the ‘purported appeal’ from the so-called judgment upon demurrer, expressly recognized its lack of power to review such intermediate ruling on a preliminary question while there remained two other causes of action unimpaired presenting matters to be litigated in the trial tribunal upon issues of fact incident to the entry of the final judgment determinative of the rights of the parties.

Authority of the court to enter judgment nunc pro tunc as in the instant case is established in Kowalsky v. Nicholson, 23 Cal.App. 160, 137 P. 607, and Haug v. Superior Court, 2 Cal.App.2d 547, 37 P.2d 1048. The principle upon which such action is to be sustained is that justice may be done between the parties. Fox v. Hale & Norcross S. M. Co., 108 Cal. 478, 41 P. 328; Osmont v. All Persons, etc., 165 Cal. 587, 133 P. 480. The present case was ready for rendition of final judgment at the conclusion of the trial of the first and second counts, and the court's failure to have included all the issues in its adjudication as of that time, March, 1935, appears from the record to have been merely an inadvertence or mistake, and not a judicial error. The entry of the judgment here under appeal simply served to complete the judgment roll, and the supply of such deficiency in the record consummated the true intention of the court as expressed in its previous acts of decision disposing of the issues in controversy. In so according with the record evidence of the prior formal pronouncements of the trial court, such judgment operated to preserve the legitimate fruits of the litigation and to prevent the working of an injustice to the party prevailing in the action. In re Estate of Pillsbury, 175 Cal. 454, 166 P. 11, 3 A. L. R. 1396. The power to enter judgment nunc pro tunc under circumstances such as here presented is inherent in the courts. Norton v. City of Pomona, 5 Cal.2d 54, 62, 53 P.2d 952. And such power, where the record furnishes the basis for the retrospective entry, may be exercised by the court at any time, on its own motion or that of a party with or without notice. E. Clemens Horst Co. v. Federal Mutual Liability Insurance Co., 22 Cal.App.2d 548, 71 P.2d 599. Appellants' contentions as to insufficiency of the notice of the motion for entry of the final judgment are therefore immaterial.

However, the court found that Anna Inez Mather had but a one-half interest in the claim against the Greenfield estate. That being so, Anna Inez Mather should be entitled to only one-half of any moneys in the hands of the administrators for payment of the claim, in the absence of anything in the record to the contrary. The record does not show that the entire sum was being held for her. The answer of the estate merely alleged that the fund was being held on account of the claim itself. It appears, therefore, that the final judgment should be corrected to conform with the finding as to Anna Inez Mather's one-half interest. That said person was entitled to but one-half of any sums payable by the estate on the claim is further substantiated by the indenture attached as an exhibit to plaintiff's complaint, wherein it is declared that ‘one-half (1/212) of all sums becoming payable to said grantor (A. W. Mather) from said estate, both by way of principal and interest, shall hereafter be payable to said Dorothy Devore Mather.’

As to appellants' statement that the amount of the costs awarded in the final judgment differs from that previously allowed in the partial judgment, entered after trial on the first and second counts, such observation is of no concern here. The question of costs is not properly before this court, and there is no basis for a decision thereon. It is impossible to determine from the record what the correct amount of costs should be, or that the statement thereof in the final judgment is not proper.

The fact that other and further proceedings were taken in another action before entry of the final judgment in the instant case did not serve to deprive the trial court of its power to enter judgment upon the findings made herein, and upon the ruling on demurrer. Greenfield v. Mather, supra. Indicative of the trial court's jurisdiction in this respect is this court's reference to the point in its opinion in that case at page 232 of 14 Cal.2d at page 102 of 93 P.2d: ‘* * * if both the judgment of January 4th and that of March 14th were partial, each disposing of a fraction of the case, then the prior action [the instant action] was still pending, and appellant was at liberty to proceed in that action, or in the present action. * * * He had previously filed a cross-complaint in the present action.’ As previously noted, the determining condition was then adjudged to be the fact.

Appellants' contention as to the sufficiency of the third count of the complaint as amended is without substantial foundation. The property settlement agreement forming the basis of that count is alleged by plaintiff to have been made in Hawaii on June 16, 1933, at which time, according to the law then in effect in that jurisdiction, a married woman might not contract with her husband. It is further pleaded that the agreement was fully executed and performed in that territory at the date mentioned, and that plaintiff thereby ‘transferred, conveyed, assigned and set over unto the defendant Anna Inez Mather’ certain specified property. Relying upon the principle that the lex loci contractus determines the validity or invalidity of such transaction, plaintiff sought rescission of the contract executed in contravention of the express stipulation of the Hawaiian law. However, granting that the agreement is vulnerable to plaintiff's pleading of the applicable statute, such admission does not avail him here. It is a well-settled general rule that a party to an illegal contract may not obtain the aid of the courts either to enforce such agreement directly or to recover any consideration parted with pursuant thereto; the law leaves the parties where it finds them. Restatement, Contracts, § 598; Woodward, The Law of Quasi Contracts, § 135; 17 C.J.S., Contracts, § 272, p. 656. Nor does there appear here to be any basis for application of the recognized qualification to this general rule, that a party not equally at fault may secure relief from the consequences of an illegal agreement. 17 C.J.S., Contracts, § 274, p. 660. Moreover, since plaintiff's ground for repudiation of the transaction runs counter to the established policy of this state regarding the right of married women to contract with their husbands as to property settlements, there are no extenuating circumstances of public interest which favor the plaintiff's position in this forum. It follows therefore that the trial court did not err in sustaining the demurrer to the thrice amended third count of the complaint, and did not abuse its discretion in refusing to allow plaintiff to make further amendment, for it is plain that no cause of action would lie on the basis of the Hawaiian law.

Appellants are not correct in contending that the sufficiency of the third count of the complaint in the present action was established by the decision in Greenfield v. Mather, supra. Such question did not enter as a factor in the disposition of the appeal in that case. As above stated, it was merely held there that since no final judgment had been entered in the present action, there was no valid plea in bar on that ground in the interpleader proceeding.

The remaining points presented here for consideration require but brief comment. The order granting entry of judgment nunc pro tunc, being an intermediate ruling of the court, is not appealable. As to the order denying the motion to vacate the judgment, under the settled law of this state an appeal will not lie from such order if the grounds upon which the moving party sought to have the judgment vacated existed before the entry of the judgment and were available on appeal therefrom. Lawson v. Guild, 215 Cal. 378, 381, 10 P.2d 459; Barry v. Learner, 113 Cal.App. 651, 653, 299 P. 82; Barker v. Ackers, 29 Cal.App.2d 162, 176, 84 P.2d 264; 2 Cal.Jur. 164. It is obvious that appellants' attempt to appeal from the order refusing vacation of the judgment merely constitutes a repetition of their appeal from the judgment.

The judgment appealed from is hereby modified to provide that the estate of Greenfield, Edna Greenfield, as administratrix, and Herman Wobber and Hugo D. Keil, as administrators thereof, do pay to said Anna Inez Mather, otherwise known as Dorothy Devore Mather, one-half of the sum of $12,549.60, admittedly in their hands subject to the order and direction of the court in this action; and as so modified the said judgment is affirmed. The attempted appeals from the order granting the motion for entry of the final judgment nunc pro tunc and from the order denying the motion to set the said judgment aside are dismissed. Costs on appeal shall be borne by the respective parties.

CURTIS, Justice.

GIBSON, C. J., and SHENK, EDMONDS, CARTER, and TRAYNOR, JJ., and PETERS, J. pro tem, concurred.