Opinion
Docket No. 2934.
December 24, 1924.
PROCEEDING on Certiorari to annul an order of the Superior Court of San Joaquin County settling bill of exceptions. George F. Buck, Judge. Writ granted.
The facts are stated in the opinion of the court.
Cooley Gallagher for Petitioner.
Levinsky Jones for Respondents.
This is a petition for a writ of review whereby the petitioner seeks the judgment of this court setting aside and annulling a certain order made and entered by the superior court of the county of San Joaquin, Honorable George F. Buck, presiding, on the sixteenth day of February, 1924, in an action then pending before said court, entitled "Ruth Jones, Plaintiff, vs. Southern Pacific Company, a Corporation, et al., Defendants, No. 16266."
The pleadings show the following facts: On the eighth day of November, 1923, a judgment was entered in said superior court in favor of the plaintiff in an action entitled, "Ruth Jones, Plaintiff, vs. Southern Pacific Company, a Corporation, et al., Defendants"; that the respondent, Southern Pacific Company, thereafter gave notice of its appeal and the time within which it should have prepared and served its proposed bill of exceptions lapsed prior to the fourteenth day of January, 1924; that on January 14, 1924, the said superior court, upon application therefor by the respondent, Southern Pacific Company, made and entered its order relieving the defendant, Southern Pacific Company, in said action from its default and failure to present its bill of exceptions within the time allowed by law, and then and there permitted the defendant in said action, respondent in this, Southern Pacific Company, to file its said bill of exceptions; that thereafter, and on the twenty-fourth day of January, 1924, the petitioner herein (the plaintiff in said action against the Southern Pacific Company) duly served and filed in said court in said cause her notice of appeal whereby it appealed from the order of said superior court so made and entered on the fourteenth day of January, 1924, to the supreme court of the state of California; that thereafter, and after said appeal by the plaintiff in said action (the petitioner in this), the said superior court on the sixteenth day of February, 1924, made and entered in said cause its order settling said bill of exceptions presented by the Southern Pacific Company, the defendant in said action, and the respondent in this, said order being as follows:
"The within and foregoing bill of exceptions is hereby settled and allowed as a bill of exceptions of the defendant, Southern Pacific Company, a corporation, on its appeal from the judgment made, given and entered in the above-entitled action.
"Dated this 16th day of February, 1924. "(Signed) GEORGE F. BUCK,
"Judge of the Superior Court of the State of California, in and for the County of San Joaquin."
It is the validity of this last order that is called in question herein. The facts which we have stated show that it was made some days after the petitioner in this proceeding, the plaintiff in the action in which the order was made, had appealed from the order of the said superior court setting aside the default of the defendant in said action, the respondent in this, upon proceedings based on section 473 of the Code of Civil Procedure, and therefore made and entered at a date when such matters were no longer within the jurisdiction of the trial court. The order just referred to was an order after final judgment, and under the terms and provisions of section 963 of the Code of Civil Procedure is an appealable order.
The questions presented by the petition herein are effectually disposed of by the following cases: Jackson v. Dolan, 58 Cal.App. 372 [ 208 P. 315], and Wolcott v. Hudner, 67 Cal.App. 704 [ 228 P. 46]. In Jackson v. Dolan, supra, in considering the effect of an appeal from an order granting a new trial, the law is thus stated: "An appeal from an order granting a new trial has the effect of removing from the jurisdiction of the trial court the subject matter of the judgment or order appealed from, including all questions going to the validity or correctness of such judgment or order, and the trial court thereafter is without authority to vacate or set aside that order." In Wolcott v. Hudner, supra, a writ of mandate was sought to compel the trial court to perform the very act the validity of which is questioned in this case, and the following was the holding of the court in that case, quoting from the syllabus: "An order granting relief under section 473 of the Code of Civil Procedure from the effect of the failure of an appellant to give the clerk timely notice of his intention to appeal and of his request for a reporter's transcript is not one of the orders mentioned in sections 942-945 of the Code of Civil Procedure, and an appeal from such order had the effect of staying all proceedings below upon the . . . order appealed from." [1] Basing our judgment upon this case, it must be held that upon the filing of her notice of appeal from the order made by the superior court in the case then pending in said court wherein the petitioner was plaintiff and the respondent defendant, on the fourteenth day of January, 1924, relieving the defendant from its default, the trial court thereafter had no jurisdiction to proceed further in the matter of settling the bill of exceptions tendered by the respondent in this proceeding, the defendant in said action, and that any order thereafter made purporting so to do must be adjudged of no validity. Upon the hearing hereof, the respondent requested that the decision of this matter be delayed until the appeal from the order made and entered by the superior court relieving the defendant from its default could be presented, but we do not see how such proceeding would in anywise expedite the final determination of the cause entitled Ruth Jones, Plaintiff, v. Southern Pacific Company, a Corporation, et al., herein referred to, for the reason that though this court might determine that the default of the defendant was properly set aside, the settling of the bill of exceptions, however, would necessarily under the authorities which we have cited, have to be adjudged void, and the final hearing of the cause then continued until a bill of exceptions could be legally presented. It follows that the writ of review must be granted and the order of the trial court made and entered on the sixteenth day of February, 1924, hereinbefore set forth, purporting to settle the bill of exceptions in the cause referred to must be and is hereby annulled.
Hart, J., and Finch, P.J., concurred.