Opinion
Hearing Granted by Supreme Court Aug. 20, 1928.
Application by Elizabeth K. Chadwick for a peremptory writ of mandamus directed to the Superior Court in and for the County of Los Angeles, directing it to amend its findings of fact, conclusions of law, and interlocutory judgment in a certain condemnation suit. Writ denied.
COUNSEL
J. Allan Frankel, Sidney A. Wilson, and A. V. Kaufman, all of Los Angeles, for petitioner.
Jess E. Stephens, City Atty., and Herman Mohr and E. H. Delorey, Deputy City Atty., all of Los Angeles, for respondent.
OPINION
CRAIG, J.
This proceeding is one seeking the issuance of a peremptory writ of mandamus directing that the above-entitled superior court amend the findings of fact, conclusions of law, and interlocutory judgment entered in a certain condemnation suit. The action in question was entitled City of Los Angeles v. George T. Gower et al. Elizabeth K. Chadwick was one of the defendants. Upon the oral presentation of the matter before this court, the averments contained in the affidavit of J. Allan Frankel were stipulated to be true. This affidavit states that the referees in their report filed in said action awarded Elizabeth K. Chadwick $1,190 for the value of land taken and $1,746 for the value of the improvements; that at the hearing before the superior court upon the referee’s report the court approved "the said award of $2,936 to the defendant Elizabeth K. Chadwick as set forth on pages 25 and 26 of the referee’s report," etc. It further appears from said affidavit that in the formal findings the value of the property of the petitioner and the improvements thereon was placed at $1,190, instead of $2,936, as set forth in the referee’s report; that this seems to have been due to an error in computation "on the part of the clerk or stenographer who transcribed such findings of fact and conclusions of law; and that the judgment of this court, based upon such referee’s report, was actually for the sum of $2,936."
Thereafter the defendant in the condemnation action, Elizabeth K. Chadwick, moved the respondent court to amend the findings of fact, conclusions of law, and interlocutory judgment in the same particulars as those whose correction is sought in this proceeding. The motion was denied.
It is the theory of petitioner that a clerical mistake only was made, and that where this is the case a party aggrieved has a right to have the judgment erroneously made so corrected as to conform to the judgment actually ordered. It may be conceded that if, upon the hearing of petitioner’s motion to amend, facts had clearly appeared, as contended by her in this proceeding, the relief prayed for then and now would not only have been justified, but have been hers as a matter of right. Boust v. Superior Court, 162 Cal. 343, 122 P. 956.
Respondent, in resisting the petition, contends that there was no evidence before the superior court to show that a clerical error or any error had been committed, or to indicate that the difference between the referee’s report and the findings and interlocutory judgment in the particulars in question did not result from a deliberate judicial determination, as declared in such findings and judgment. To this the principal reply of the petitioner is that the stipulation as to correctness of the facts set forth in the affidavit of J. Allan Frankel precludes the respondent from disputing such facts and, therefore, of advancing the argument just stated; but it has been shown above that the affidavit merely shows that there appears to have been a clerical error.
The outcome of this proceeding does not hinge upon a determination of what the fact were as to whether or not an error was actually committed, as contended by petitioner, and, if so, whether its nature was clerical or judicial. The deciding factor here is found in the facts before the trial court upon the hearing of the motion for amendment and correction of the findings, conclusions of law and interlocutory judgment. The proceeding in this court cannot be converted into a hearing de novo upon the application just mentioned. A reviewing court will not compel an inferior tribunal to do that which the latter upon the hearing before it was justified in refusing to do. To do so would violate every principle bearing upon the determination of justice involved in the proceeding in question. It would be unfair to the trial court and inequitable to respondent, and it would ignore all rules requiring diligence in the presentation of his case by one who would secure remedial relief through a court’s decree. The affidavit in question does not represent that any proof was produced upon the hearing of the motion of Elizabeth K. Chadwick before the superior court except the affidavit of petitioner’s attorney and the judgment roll. The gist of that affidavit was to assert that a clerical error had been made and that the judgment of the court was for $2,936, but the judgment roll showed that the judgment was for only $1,190, and that the findings of fact, actually signed by the court, were consistent with the rendition of that judgment and none other. The judge who presided upon the hearing of the referee’s report was not made a witness; the stenographer and the clerk were not sworn nor questioned. The proceeding involved the determination of a question of fact, and, as we have said, in so far as the record before us shows, nothing was presented to the trial court except the judgment roll and the affidavit above mentioned. Without some further proof it is doubtful if an order amending the judgment would have been justified. It is certain that an order denying the application cannot be disturbed. The showing certainly warranted the conclusion that if any error had been committed it was judicial and not clerical. Under such circumstances, the only remedy of the aggrieved party is by appeal, and no summary proceeding can be maintained. The authorities to this effect are numerous. Two of those in which the subject is given full consideration are McKannay v. McKannay, 68 Cal.App. 709, 230 P. 218, and County of Los Angeles v. Rindge Co., 69 Cal.App. 72, 230 P. 468.
The writ is denied.
We concur: WORKS, P. J.; THOMPSON, J.
Court