Opinion
Rehearing Denied July 17, 1930
Hearing Granted by Supreme Court Aug. 18, 1930
See, also, 282 P. 978.
Appeal from Superior Court, San Mateo County; George H. Buck, Judge.
Action by Jules Lauchere against Charles G. Lambert and another, doing business as Lambert & Walter, for damages for fraud. From an order granting a new trial after a verdict for plaintiff, plaintiff appeals.
Reversed, with directions. COUNSEL
Jackson & Peterson and Clell H. McCredie, all of San Francisco, for appellant.
Ross & Ross, of Redwood City, for respondents.
OPINION
NOURSE, P.J.
Plaintiff sued for damages in fraud. The cause was tried before a jury and resulted in a verdict in favor of plaintiff for $1,500 The defendants’ motion for a new trial was granted, and from that order the plaintiff has appealed on typewritten transcripts.
Briefly, the facts upon which the verdict was returned are that in July, 1922, plaintiff entered into a written agreement with one Waterman for the purchase by plaintiff of real property situated in Redwood City; in April, 1924, plaintiff executed a written agreement to sell his interest in the property to Diehl; that, at some time between these two dates, Waterman transferred all his interest to the defendants; that, from May, 1924, under arrangements made at the time, defendants collected the installment payments from Diehl and applied them to plaintiff’s contract with Waterman; that, after these collections had been made and applied in this manner for about two years, the defendants, without notice of any kind to the plaintiff, purchased Diehl’s interest in the contract, and then, the defendants being both seller and purchaser, all payments ceased. The plaintiff having failed to place of record his contract of purchase, the defendants deemed the title clear and sold the property for a consideration to a third party. During the trial the plaintiff offered to prove a tender of the balance due under the contract, but, upon objection of the defendants, the court rejected the evidence.
Following the verdict for the plaintiff, the defendants moved for a new trial on all the statutory grounds. They did not support their motion with affidavits or otherwise, and, on this appeal, they do not defend the order on any ground other than the one covering the sufficiency of the evidence. Manifestly, if any single ground would justify the order granting the new trial, that order must be affirmed, but we have examined the record with care and are satisfied that (except for the matter of the evidence) the record is free from error, and that the order cannot be sustained upon any of those grounds. We may add that from respondents’ failure to even mention any one of these grounds which in their opinion might sustain the order we may assume that they have abandoned them.
The order granting a new trial was made on February 21, 1929, and read as follows: "It is ordered that said motion be and the same is hereby granted as prayed." It appears undisputed in the record that, at the time the order was made, counsel for appellant in open court requested the court to specify the grounds upon which the motion was granted, and that the court replied: "I will not specify any grounds and will let the order stand as it is." Thereafter, and on September 20, 1929, without notice to appellant and without giving him an opportunity to be heard, the court made a new order to be entered nunc pro tunc as of February 21, 1929, reading: "The court in open court stated its views in said matter and particularly stated that the evidence was insufficient to justify the verdict."
The difference between the parties on this appeal hinges upon the validity of this new order. Its importance is manifest because, under the provisions of section 657, Code of Civil Procedure, it will be presumed that the order granting a new trial was not based upon the ground that the evidence was insufficient to sustain the verdict unless "the order shall so specify." It is manifest that neither the first nor the second order did "specify" that the motion was granted on that ground. The uncontradicted evidence that at the time the order was made the trial court expressly refused to specify the grounds and the recital seven months later in the nunc pro tunc order that the court merely expressed the view that the evidence was insufficient does not bring the case within the rule of the Code section. The order which was made and entered at that time recited that the motion was "granted as prayed for." It may be that, because the insufficiency of the evidence was one of the grounds mentioned in the motion, the trial court deemed its order "as prayed for" was sufficient to indicate that the motion was granted on that ground, but the Code section requires that this ground must be specified in the order, and that has not been done.
Aside from this, we are convinced that the trial court was without jurisdiction to amend its order at the time. Seven months had passed since the original order was made. Less than two months after the original order the transcript on appeal containing that order was presented to the trial judge and he certified it to be correct. At the same time the order was called to the attention of counsel for respondents, but they made no move to correct it until after the six months’ period had expired.
The rule of law involved is stated in Scamman v. Bonslett, 118 Cal. 93, 97, 50 P. 272, 274, 62 Am.St.Rep. 226: "Any error or defect in a record, occurring through acts of omission or commission of the clerk in entering, or failing to properly enter, of record the judgment or proceedings of the court,— in short, what may be termed ‘clerical misprisions,’— may, the record affording the evidence thereof, be corrected at any time by the court upon its own motion, or on motion of an interested party, either with or without notice. Where, however, an inspection of the record does not show the error, and resort must be had to evidence aliunde, courts will require notice to be given of a motion to amend a judgment to the parties to be affected thereby; and a motion for the amendment of a judgment in such last-mentioned case must, under section 473 of the Code of Civil Procedure, be made within six months. *** People v. Greene, 74 Cal. 400, 16 P. 197, 5 Am.St.Rep. 448; Hegeler v. Henckell, 27 Cal. 495; Bostwick v. McEvoy, 62 Cal. 502; Wharton v. Harlan, 68 Cal. 422, 9 P. 727." If the nunc pro tunc order is to be treated as a correction of the judge’s certificate to the transcript (in lieu of a bill of exceptions or statement of the case), the same rule would apply. Fountain Water Co. v. Superior Court, 139 Cal. 648, 651, 73 P. 590. Respondents do not attempt to defend the order of September 20th on any other ground than that every court has the inherent right to cause its records to correctly set forth its proceedings. There is no quarrel with this position, if, as pointed out in the Scamman Case, the error is the error of the clerk and is apparent in the record. But, if the error is the error of the court, then the record speaks the truth when it discloses the error, and the order then can be modified only on motion in the manner stated.
The reason for the rule is emphasized by the case at hand. If appellant had been given notice of the motion and had been given an opportunity to demonstrate to the trial court that there was no inadvertence on the part of the clerk, then the motion to modify the original order should have been denied. When the law specifies the rights of the parties which cannot be altered except by a day in court, an ex parte order, made without notice or hearing, which deprives one of those parties of his substantial rights, is beyond the jurisdiction of the court to make.
The order is reversed, with directions to the trial court to enter judgment on the verdict.
We concur: STURTEVANT, J.; BURROUGHS, Justice pro tem.