Opinion
Rehearing Denied Feb. 20, 1931
Hearing Granted by Supreme Court March 24, 1931
Original application by Charles O. Middleton for certiorari to review orders of the Superior Court of Los Angeles County.
Writ granted, and orders annulled.
COUNSEL
Call & Murphey and Anderson & Anderson & Sheahan, all of Los Angeles, for petitioner.
McAdoo, Neblett & Clagett, of Los Angeles, for respondent.
OPINION
CRAIG, J.
Upon a complaint filed in the superior court of Los Angeles county by the petitioner, certain defendants joined issue, the action was dismissed as to others, and, after the introduction of evidence, a decree was entered in favor of the plaintiff determining the issues between the parties and directing an accounting. Thereafter, upon the rendition of the accounting, a "supplemental" decree was rendered, adopting recommendations of the accountants and directing distribution of certain funds in accordance therewith, which decree also was entered. The plaintiff has petitioned this court for a writ of certiorari to review the proceedings below, and for annulment of subsequent orders of the trial court purporting to vacate the decree first mentioned and granting a new trial upon the issues determined thereby.
At the conclusion of the trial findings of fact, conclusions of law, and a decree dated July 19, 1929, determined the respective interests in certain described properties of the plaintiff, and of defendants T.L. Dudley, F.P. Newport, and the Security Trust & Savings Bank, a corporation. Referees or accountants were appointed, and the court directed that Dudley render an accounting of certain trust funds, liens, etc., and that Newport render an accounting to Dudley and to the plaintiff, reciting in its decree that "thereupon this court shall decree the amount of money due" from each to the other, namely, from Newport to Dudley as trustee, to Middleton & Newport, a copartnership, and to Middleton personally; from Dudley to the trust and copartnership, and as to any mortgages or liens created to secure the payments of moneys claimed to be due to Newport. It was further decreed that the defendant Newport bear the expense of such accounting, and that the plaintiff and the defendant bank recover their costs from the defendant Newport. A motion for a new trial was presented by the defendants Dudley and Newport, which was denied. On July 31, 1930, upon the return and filing of the accountants’ report, the trial court made its "supplemental judgment" heretofore mentioned, reciting that said report had been filed in accordance with the decree, and adopting the report.
On August 8, 1930, the defendants Newport and Dudley caused to be served a notice of motion "to vacate and set aside the first or interlocutory judgment heretofore rendered in said action on July 19, 1929; *** and *** to vacate and set aside the second or final judgment heretofore rendered in this action on July 31, 1930." Said motion was based upon the same grounds and upon the affidavits "heretofore filed herein on or about the 30th day of July, 1929," which were presented in the first instance. This latter motion was "granted on the grounds of insufficiency of the evidence to sustain the decision, and that the decision is against law." On September 24, 1929, the defendants appealed from the decree of July 19, 1929, and on August 29, 1930, they appealed from the decree of July 31, 1930. Pursuant to the order granting a new trial there is pending a motion to set the case for trial "of all of the issues involved therein, including all of the issues decided and determined in and by said judgment therein of July 19, 1929."
The respondent demurs to the instant proceeding upon the ground that the stated facts do not authorize the relief sought, and by answer it is contended that the decree first rendered was interlocutory, that the motion for a new trial then presented was premature, and that the order denying it was a nullity; that the motion for a new trial which was interposed after rendition of the later and so-called "supplemental judgment," designated by respondent as the "final judgment," was timely, that the order granting a new trial was valid, and that petitioner is not without a plain, speedy, and adequate remedy at law, for the reason that he may abide the event of another trial and appeal from any adverse judgment, if such be rendered.
By the findings, conclusions of law, and decree made and entered in July, 1929, at the conclusion of the trial, all of the issues were finally and definitely settled and determined, leaving for ascertainment no more than the amounts of certain already adjusted reciprocal obligations, a mere question of arithmetic. It was found that a partnership existed between the plaintiff and the defendant Newport, and the same was by said decree dissolved. It was determined that Middleton was the owner of an undivided one-half interest in all the assets and properties of said copartnership, the title to a portion of which stood in the name of the defendant Dudley; that the partnership interest was subject to the interests of a certain syndicate for which the latter should receive the sum of $150,000; that a certain adjudged interest of the plaintiff was subject to the rights of the defendant bank as trustee for assignees of Middleton, and that the bank should receive the sum of $27,657.64, with interest, for such assignees. These facts were all thereafter reargued upon a motion for a new trial, were considered by the trial court, and the motion was denied. Upon the motion then presented the court decided, in effect, that there were no errors occurring at the trial, that the evidence was not insufficient to justify the decision, that it was not against the law or against the evidence, and that the defendants were not prevented from having a fair trial. Upon receipt of the account, all that remained to do or that was done consisted of its adoption and embodiment in a supplemental decree, which adjudged the holdings of each party and the amounts of a portion of the obligations of each of the parties to the others under the requirements of the original judgment.
While the authorities upon which the respondent relies may at first blush apparently tend to sustain its contentions, they are analogous only to the extent that they hold that an interlocutory decree is not final. An analysis of them all is not necessary to a complete consideration of the question before us. None of them pretends to hold that in a case such as the instant one a ruling upon a motion for a new trial is not conclusive upon the trial court. So far as they differ in character or in result they are not in point, but so far as they express pertinent principles, even by obiter dictum, they are in harmony with controlling authorities which recognize the finality of orders denying new trials. Selected examples are sufficient to reveal the extent of their persuasive value in this proceeding. In an action to quiet title it was said that an interlocutory judgment, reserving for future determination the amount of rents, issues, and profits, is appealable, and that proceedings upon a motion for new trial do not apply. Yet, the Supreme Court held: "The very fact that the judgment in question was interlocutory left the whole case before the court for final adjudication, and even if it be conceded that the order vacating the interlocutory judgment and granting a new trial was erroneous, it was but an order in the exercise of its jurisdiction over the cause and the parties, to be corrected, if need be, upon an appeal from the final judgment in the action. Code Civ.Proc. § 956." Pomper v. Superior Court, 191 Cal. 494, 216 P. 577, 578. Following this authority it is clear that, even if conceded that the order of the court denying the first motion for a new trial was erroneous, it could not be corrected by a motion of the same character, but, aside from certain statutory exceptions with which we are not concerned, this could be accomplished only in the course of an appeal to be taken from the judgment when rendered. This is the remedy indicated by the foregoing decision in such an instance. In Doudell v. Shoo, 159 Cal. 448, 114 P. 579, 582, and Clement v. Duncan, 191 Cal. 209, 215 P. 1025, 1028, both involving partnership accountings, the interlocutory decree was in each instance based upon findings which, as stated in the Doudell Case, determined none of the issues except the fact of partnership and the existence of mutual undetermined claims and demands, and certain property, and a conclusion of law which declared no more than that an accounting was necessary. In neither of the cases were there findings fixing the relative rights of the parties as there are in the one here under consideration. In the former a stay of execution upon appeal from the final judgment without sureties was denied, and in the latter the right of appeal from the interlocutory judgment was denied. In each of these two cases elaborate findings of fact and conclusions of law were requisite to the final judgment after an accounting. But in Doudell v. Shoo, supra, it was remarked: "If the first decree was a final adjudication of the rights of the parties with respect to any matter contained in it, it might well be claimed that the appeal from that order, together with the giving of the bond required by the order of the trial court, would stay the power of the court to take any further proceedings with reference to the matter covered by the judgment appealed from while the appeal remained undisposed of." In the instant case we have every issue covered in the findings upon which the interlocutory decree is based, and, when the so-called "final judgment" was made, it was unnecessary to make further findings, and none were made, except that approving the report of the referees. In both of the above-mentioned cases it was observed: "There may, however, be cases not coming within the purview of said section [Code Civ.Proc. § 963] in which an interlocutory decree may involve a full, complete, and definite adjudication of all the material or vital issues of fact arising in the case." We think that this is such a case.
We are aware of no authority in this state in conflict with the rule first announced herein which limits a trial court to a single ruling upon the motion for a new trial, after suspension of a hearing and the rendition of findings, conclusions of law, and a decree upon the material issues presented by the pleadings. The court may modify its decree only in exceptional ways prescribed by the statute that is, by a proceeding under section 473 of the Code of Civil Procedure, or by a proceeding for an entry nunc pro tunc in the event of an erroneous entry at variance with its rulings. Frost v. L.A. Ry. Co., 165 Cal. 365, 132 P. 442. The court here had jurisdiction of the subject-matter and of the parties, and jurisdiction to grant or to deny a new trial. If the motion was entertained and considered in disregard of statutory methods of procedure, it was erroneous, but not void. Hutchinson v. Inyo County, 61 Cal. 119; Yenawine v. Richter, 43 Cal. 312. Subject to exceptions not here appearing, the order denying a new trial was reviewable only upon appeal, and the subsequent action of the court in rendering a contrary decision of the same issues, upon the same grounds, was accomplished through an attempted exercise of an exhausted authority. Holtum v. Grief, 144 Cal. 521, 78 P. 11, 12. The statute authorizes but one motion for a new trial, and makes the ruling thereon final, so far as the superior court is concerned. Dorland v. Cunningham, 66 Cal. 484, 6 P. 135. In an instance not dissimilar to that here presented the Supreme Court observed: "The decisions of this court are numerous and uniform to the effect that a judgment or order once regularly entered can be reviewed and set aside only in the modes prescribed by statute. If they have been entered prematurely or by inadvertence, they may be set aside on a proper showing (Odd Fellows’ Savings Bank v. Deuprey, 66 Cal. 170, 4 P. 1173, and cases cited), *** but, subject to these exceptions, the order is reviewable only on appeal, and, the decision of the trial court having been once made after regular submission of the motion, its power is exhausted. It is functus officio. ***" Holtum v. Grief, supra. The same rule was applied in Bloomquist v. Haley, 204 Cal. 258, 268 P. 364. In Drinkhouse v. Van Ness, 202 Cal. 359, 260 P. 869, 872, these principles were considered in passing upon the validity of an order granting a new trial and a subsequent order amending the first and denying a motion for new trial as to one of the defendants, and the rule applied in the following language: "When a motion for a new trial has been made in due form, upon a settled statement, and the court has passed on the motion, the order regularly made is conclusive so far as the court making it is concerned. It cannot afterwards, even on motion, vacate the order and decide the matter anew." We think further consideration of the matter would be unwarranted.
The writ is granted, and orders annulled as prayed.
We concur: WORKS, P.J.; IRA F. THOMPSON, J.