Opinion
Hearing Granted by Supreme Court Dec. 1, 1927.
Appeal from Superior Court, Los Angeles County; Hugh J. Crawford, Judge.
Action in claim and delivery brought by A. Blomquist and wife against I. M. Haley and wife. From a judgment in favor of plaintiffs, defendants appeal. Reversed with directions.
COUNSEL
Morris Abraham and Charles I. Rosin, both of Los Angeles, for appellants.
D. K. Gault and Schweitzer & Hutton, all of Los Angeles, for respondents.
OPINION
CRAIG, Acting P. J.
This appeal is from a judgment against the appellant giving the respondents possession of certain personal property, which is the subject of the suit, and damages for the value of said property. The action is one in claim and delivery in the usual form. It is a companion case to Haley v. Blomquist (No. 5519) 260 P. 569, and Blomquist et al. v. Haley (No. 5518) 260 P. 571. The opinion in the first of the two companion cases just named relates the principal facts referred to in the instant appeal.
It appears that by the terms of the chattel mortgage mentioned in that opinion, on the 1st day of May, 1926, there became due the sum of $500. The defendants and appellants as assignees of the personal property were obligated to make this payment, but refused to do so. The chattel mortgage expressly provides that, if the mortgagor shall fail to make any payment agreed to be made, the mortgagees have the right to take possession of the mortgaged property. Therefore appellants’ default gave the respondents the right to claim possession.
Since the auction sale was void as against public policy (Haley v. Blomquist, supra), we need not consider appellants’ contentions in reliance upon that transaction.
As in Blomquist v. Haley, supra, the failure of the answer to deny the allegations of the complaint that the lease was assigned to T. E. Haley, as well as I. M. Haley, was an admission of the truth of that statement. With the pleadings in this condition, the finding that Zeller assigned to both appellants was warranted.
At the close of the trial judgment was rendered for plaintiffs and respondents for $25,000, in the event that the property covered by the chattel mortgage should not be restorable to them. There was no justification or basis for a judgment naming this sum. Later, on September 17, 1926, the court granted appellants’ motion herein for a new trial; then on September 20, 1926, the respondents having consented to a judgment for $8,999.80, the order granting a new trial was vacated and set aside and the judgment modified in accordance with the stipulation. Respondents insist that the order made on September 17th was based upon an understanding that it should not take effect in the event that respondents consented to a modification of the amount of the judgment. The order is general in its terms and the record contains nothing in support of this assertion. Without doubt, the trial court exhausted its jurisdiction by granting the new trial, and the order made in attempting to vacate that order was void. Holtum v. Greif, 144 Cal. 521, 524, 78 P. 11, and cases there cited; Dorland v. Cunningham, 66 Cal. 484, 6 P. 135. No attempt was made to set the order aside upon a proper showing that it had been entered peremptorily or by inadvertence, as was done in Odd Fellows’ Savings Bank v. Deuprey, 66 Cal. 168, 4 P. 1173, or to correct it, as in Garoutte v. Haley, 104 Cal. 497, 38 P. 194. None of the grounds set forth in appellants’ motion for new trial have merit except that the judgment rendered was erroneous because for a wrong amount in case the personal property involved was not recoverable. Nevertheless, it clearly appears from the evidence and the pleadings herein that the sum of $8,999.80 was, at the date of the trial, due to plaintiffs from the defendants. It further appears that on September 17, 1926, plaintiffs executed and on September 20, 1926, caused to be filed their written consent to the modification of the judgment in their favor reducing the amount from $25,000 to said sum of $8,999.80, and on September 20, 1926, the court, in the presence of counsel for both parties, set aside its previous judgment and its order granting the motion for a new trial, and modified said judgment in accordance with said consent that day filed. While the order vacating the order granting a new trial was void, still, as we have said, the true amount is that provided by the judgment as modified. We can see no benefit in sending the case back for a new trial which can only result in a judgment in favor of plaintiffs for $8,999.80 as of September 20, 1926. Section 956a of the Code of Civil Procedure as added by St. 1927, p. 583 authorizes this court, under such circumstances, to make any order necessary in the interests of justice and to the end that final disposition of the case may be made upon a single appeal. The primary purpose of that section is as stated in its own language, that:
"Wherever possible causes may be finally disposed of by a single appeal and without further proceedings in the trial court."
The principal need for this reform in procedure was apparently regarded to be in cases where it might be necessary to take more evidence and make additional findings; but other instances of similar character occur. Such, we think, is the instant appeal. To care for these, as well as better to effectuate the general purposes of the law, it was enacted that the Supreme Court and District Courts of Appeals "may give and direct the entry of any judgment or order, and make such further or other order as the case may require."
The judgment appealed from is reversed. It is directed that the order of the trial court granting a new trial be vacated, that said court enter a new judgment for the plaintiffs that they have possession of all of the furniture, fixtures, and furnishings described in the complaint, and, in the event that said property cannot be restored to plaintiffs upon the return of the writ of the sheriff so stating, then that plaintiffs have judgment against the defendants in the sum of $8,999.80, with interest from September 20, 1926, at the rate of 7 per cent. per annum, the amount due and unpaid upon the note and chattel mortgage covering said property, and interest, and for their costs.
We concur: THOMPSON, J.; COLLIER, Justice pro tem.