Opinion
Rehearing Granted April 7, 1961.
Opinion vacated 15 Cal.Rptr. 1.
Lacey, Holbrook & Meyenberg, Richard E. Holbrook, Salinas, for appellant.
Bardin, Cunningham & Panelli, Boccardo, Blum, Lull, Niland & Teerlink, by Edward J. Niland, San Jose, for respondents.
TOBRINER, Justice.
The clarification of the court's minutes to reflect the fact that their reference to the argument of counsel designated an argument upon the sole ground of the insufficiency of the evidence, based upon amended motions for new trials on that single ground, did not constitute a modification of the order granting new trials proscribed by section 657 of the Code of Civil Procedure. In these consolidated actions for personal injuries sustained by respondent driver and passenger (plaintiffs) in a rear-end collision the jury returned a verdict for appellant (defendant). Respondents each moved for a new trial upon the grounds of '1. Insufficiency of the evidence to justify the verdict; 2. The the verdict is against the law.' The bare content of the minutes as to the disposition of the motions, entered on May 11, 1959, read: 'Bardin & Cunningham, by Niles Cunningham, counsel for plaintiffs, and Garth V. Lacey, counsel for defendants, are present in Court. Plaintiffs move the Court for new trials in each of the above actions. Argument is made by respective counsel and the motions are granted.'
Thereafter, on December 11, 1959, respondents filed a notice of motion to correct and amend minutes nunc pro tunc, asserting that 'by reason of clerical error and omission the said minutes do not conform to the actual facts and do not speak the whole truth relating to the proceedings * * *.' When the matter came up for hearing on December 18, 1959, the judge stated that he would rely on his 'own recollection of the substance of the situation' and that he would not read the supporting affidavits; he recalled the situation 'because granting of a new trial as far as this judge on this bench is concerned is rather unusual. I recall only three in this County in the ten years I've been here.' The court then stated: 'Mr. Cunningham and Mr. Lacey were here and Mr. Cunningham did announce that he was abandoning all grounds other than that of insufficiency of the evidence.'
Accordingly, on December 22, 1959, the court filed an 'Order for Correction and Amendment of Minutes Nunc Pro Tunc.' The salient portion of the order reads that the minutes of May 11, 1959, 'be corrected and amended nunc pro tunc' by inserting in lieu of the third sentence of the minutes the following: 'Counsel for plaintiffs abandons and withdraws, as a ground for the said motions, the ground that the verdicts are against the law. The Court accepts said abandonment and withdrawal. Argument is made by respective counsel upon the sole ground of insufficiency of the evidence to justify the verdicts and the motions are granted.'
The question before us resolved into the validity of the correction of the minutes since the record shows both that an order A brief narration of the facts confirms the proposition above stated. In substance, appellant apparently ran her car into the rear of respondent Tatum's vehicle which had stopped for a left hand turn, and, after the accident, admitted fault. Respondent Tatum was about to turn into the intersection of Romie Lane and the entrance of a hospital in Salinas, California; appellant's Chevrolet car proceeded down the street following by about fifty feet respondent Tatum's Buick; appellant saw the signal light on the rear of the Buick flash to indicate a left hand turn, and coincidentally appellant remained about fifty feet behind respondents. Appellant knew the Buick was about to make a left hand turn; she saw the Buick blink its light; she 'imagined' the Buick to be proceeding at about fifteen to twenty miles per hour. Appellant originally testified that the Buick came to a stop, presumably to permit some oncoming cars to pass, but she did not recall what she did at this moment; she 'imagined' that she slowed down. She did not know how far her car was to the rear of the Buick when she applied her brakes. At the time of the impact the Buick's signal light continued blinking.
On re-direct examination appellant testified that she could not say whether or not the Buick stopped; she later testified that the Buick did not stop until after she hit it. She further testified that when the signal light came on the Buick was fifty feet from the intersection; her car was about fifty feet to the rear of the Buick; she did not put on her brakes when she was fifty feet behind the Buick.
Both respondents testified that before the Chevrolet struck the Buick that car had stopped in order to allow two oncoming cars to pass. Two independent witnesses corroborated this testmony. Nor did the Buick come to a sudden stop. Both respondents further testified that immediately after the accident appellant stated, 'Well, it's all my fault.'
Upon this record we cannot rule that the trial court abused its discretion in granting new trials. In the words of Hawk v. City of Newport Beach, 1956, 46 Cal.2d 213, 293 P.2d 48: '[I]t cannot be held that a trial court has abused its discretion where there is any evidence which would support a judgment in favor of the moving party.' 46 Cal.2d at page 219, 293 P.2d at page 51. To the same effect: Vanni v. Burns, 1960, 179 Cal.App.2d 58, 61, 3 Cal.Rptr. 487; Huntley v. County of Santa Clara, 1959, 168 Cal.App.2d 298, 300, 335 P.2d 722. Certainly there is evidence here which would support a judgment in favor of respondents. Indeed, appellant makes no argument to the contrary.
As we have stated, the record likewise sustains the converse proposition that the order for new trials cannot be affirmed upon the ground that the verdict was against law. As appellant has pointed out, the evidence is in conflict on three points: (1) whether respondent Tatum gave an arm or hand signal; (2) whether or not the brake lights on respondent Tatum's car came on; and (3) whether or not respondent Tatum's vehicle came to a stop before the collision. We therefore cannot conclude that the evidence in this case was insufficient in law to support the verdict and without conflict on any material point.
The determinative question, then, must be whether or not the trial court's order granting new trials may properly rest upon the ground of the insufficiency of the evidence. Section 657 of the Code of Civil Procedure provides that 'When a new trial is granted, on all or part of the issues, upon the ground of the insufficiency of the evidence to sustain the verdict or decision, the order shall so specify this in writing and shall be filed with the clerk within ten days after the motion is granted; otherwise, on appeal from such order it will be conclusively presumed that the order was not based upon that ground.' While the statute plainly indicates that if the order omits the reference to the insufficiency of the evidence, that ground is precluded, and the cases so hold (Yarrow v. State of California, 1960, 53 Cal.2d 427, 2 Cal.Rptr. 137; Cook v. Bordi, 1960, 177 Cal.App.2d 112, 1 Cal.Rptr. 886; Bray v. Rosen, 1959, 167 Cal.App.2d 680, 335 P.2d 137; Roth v. Marston, 1952, 110 Cal.App.2d 249, 242 P.2d 375; Gursey v. Campus Camera Shop, Inc., 1950, 98 Cal.App.2d 257, 219 P.2d 884; Thomas v. Driscoll, 1940, 42 Cal.App.2d 23, 108 P.2d 43; Whitley v. Superior Court, 1941, 18 Cal.2d 75, 113 P.2d 449), the order may be read in the light of the argument and the motion. If the only ground alleged in the argument and motion is the insufficiency of the evidence, and the order merely grants the motion without specifying the ground, the order may be held to have been granted upon the ground of the insufficiency of the evidence. Ice-Kist Packing Co. v. J. F. Sloan Co., 1958, 157 Cal.App.2d 695, 697, 321 P.2d 840; Cox v. Tyrone Power Enterprises 1942, 49 Cal.App.2d 383, 399, 121 P.2d 829.
Even though multiple grounds may be presented in the motion, the courts will construe the order as based upon the single ground of insufficiency of the evidence if an examination of the facts so warrants. Thus in Kralyevich v. Magrini, 1959, 172 Cal.App.2d 784, 342 P.2d 903, plaintiff moved for a new trial on the issue of damages on the grounds of insufficiency of the evidence and that the verdict was against the law, but the order granting the motion read, "A new trial is hereby granted in the above entitled matter insofar as the question of damages only is concerned." 172 Cal.App.2d at page 787, 342 P.2d at page 904. This court determined that while two grounds were specified in the motion, only one, insufficiency of the evidence, could 'be reconcilable with a reexamination of the amount of the award * * *.' 172 Cal.App.2d at page 790, 342 P.2d at page 906. The court therefore interpreted the order as one based only on insufficiency of the evidence. Alluding to the 'liberal attitude on the part of the appellate courts' in this regard, the court says: 'The rule seems now to be well established that if the language used in the order is reasonably susceptible of being interpreted as an intent to grant a new trial on account of the insufficiency of the evidence to sustain the verdict, or if it may be fairly inferred from the language used that such was the ground upon which the order was made, it will be held that there has been a sufficient compliance with Code of Civil Procedure, section 657.' 172 Cal.App.2d at page 788, 342 P.2d at page 905. See also, Van Ostrum v. State of California, 1957, 148 Cal.App.2d 1, 306 P.2d 44.
The courts have likewise upheld an order as in compliance with the section by examining the motion upon which it rested and concluding from such examination that the real basis of the motion itself was the insufficiency of the evidence. Thus in Ice-Kist Packing Co. v. J. F. Sloan Co., supra, 157 Cal.App.2d 695, 321 P.2d 840, the notice of intention to move for a new trial 'sought a new trial upon the issue of damages alone, and, in the alternative, on all issues upon the ground of 'insufficiency of the evidence to justify the verdict and that said verdict is against the law * * *.'' 157 Cal.App.2d at page 696, 321 P.2d at page 841. 'The minute order granting the new trial merely states 'the Court grants the motion." 157 Cal.App.2d at page 697, 321 P.2d at page 841. Pointing out that '[b]y its own language the notice restricted the ground upon which the new trial was sought to insufficiency of evidence' (157 Cal.App.2d at page 696, 321 P.2d at page 841), and holding that '[t]he order and the notice of intention must be read together' (157 Cal.App.2d at page 698, 321 P.2d at page 842), the decision states: '* * * in view of the broad interpretation heretofore given this section by the courts, the purpose of the requirement that the ground be stated, the fact that here only one ground was specified in the motion and that that one ground was the only ground upon which the motion could have been granted, we deem that The Ice-Kist case rests, among others, upon Cox v. Tyrone Power Enterprises, supra, 49 Cal.App.2d 383, 121 P.2d 829, which construes the ground of the order according to the basis of the motion. There the court held that since plaintiff relied upon the insufficiency of the evidence as the only ground for new trial, and, since the order could not include more than the motion itself, the minute order controlled and, when construed with the notice of motion, specified the ground as the insufficiency of the evidence.
In the instant case the original written notices of motion specified two grounds for the motions, but the corrected minutes demonstrated that the movants, with the court's permission, orally amended their motions to withdraw one ground, and argued a single ground, prior to the court's consideration of the merits of the motions. Under the rationale of the Ice-Kist case we must read the order with the notices of motion, or, in this case, the orally amended motions, and the argument upon the amended motions. Thus, the court's order granting the motions could have been based only on the one remaining ground which was urged, the insufficiency of the evidence.
Since the cases uniformly hold an order granting a new trial for insufficiency of the evidence may be sustained by reference to the proceedings which preceded it, the court's order, referring to the 'argument * * * by respective counsel' may be supported by reference to the true content of that argument. Since the 'argument' urged only insufficiency of the evidence, the order granting new trials could validly stand upon that ground. Piru Citrus Ass'n v. Williams, 1950, 95 Cal.App.2d 911, 914, 214 P.2d 426; Bridgford v. Sawyer, 1951, 105 Cal.App.2d 631, 234 P.2d 95; Pacific Hardware & Steel Co. v. Cheim, 1959, 169 Cal.App.2d 339, 337 P.2d 508; Casterline v. Young, 1959, 167 Cal.App.2d 669, 334 P.2d 966. The later correction did not change or modify this order; the correction only set out in more detail, and in conformity with the facts, the content of the 'argument.' Into the bottle of the word 'argument,' the court poured the old wine of the actual proceedings. The container remained the same; the original order remained the same; the actual facts, previously abbreviated into the single word 'argument,' were merely spelled out.
It would be abhorrent that the minutes be read in a manner contrary to the facts. Although the attorney for appellant may argue that he took his appeal upon the ground that the new trials had not been granted upon the basis of the insufficiency of the evidence, the statement of the court shows that he must have known full well that the order rested upon that ground. He was present at the proceedings; he heard opposing counsel withdraw the additional ground and argue the motions on insufficiency alone. We would not suppress the facts to satisfy his hope that the technicality will frustrate the appeal at the same time we nullify respondents' deserved new trials.
The cases upon which appellant relies involve situations in which the court directly attempted, after the lapse of the ten day period, to change its official order. In the principal case to that effect, Roth v. Marston, supra, 110 Cal.App.2d 249, 242 P.2d 375, the plaintiffs, after a judgment had been entered for the defendant, moved for a new trial on all the grounds stated in section 657 except that of 'excessive damages.' 110 Cal.App.2d at page 250, 242 P.2d at page 376. The court granted the motion, stating orally that it did so "upon the ground of the insufficiency of the evidence to sustain the verdict." 100 Cal.App.2d at page 250, 242 P.2d at page 376. The written order omitted any statement of the grounds upon which it rested; the minutes read: "* * * that said motion The Roth case is distinguishable from the instant one. Movants there sought a new trial upon all of the grounds set forth in section 657 except excessive damages. All such grounds were submitted to the court and taken under advisement by it. The minute order granted the motion, automatically embracing all of the grounds submitted. The nunc pro tunc order sought directly to change the order of the court to eliminate from it the other bases upon which it was granted and to add to it the specification of insufficiency of the evidence. In the instant case the sole and only ground submitted to the court comprised insufficiency of the evidence; the court did not take under advisement any other basis for the order, and the rendered order applied, and could apply, only to the single ground of insufficiency. While in Roth the order is amended and amplified, the order here is not touched.
The parallel cases of Thomas v. Driscoll, supra, 42 Cal.App.2d 23, 108 P.2d 43, and Whitley v. Superior Court, supra, 18 Cal.2d 75, 113 P.2d 449, cited by appellant, likewise pertain to situations in which the court attempted to correct the original order by inserting in it the specific grounds of the insufficiency of the evidence. Those cases succumb to the rule that the order itself cannot be so modified. Moreover, Whitley, to the extent that it held that the minute order, as distinguished from a formal order of the court, did not satisfy the requirement of section 657, was overruled in Dempsey v. Market Street Ry. Co., 1943, 23 Cal.2d 110, 117, 142 P.2d 929.
We see no reason why the trial court cannot conform the minutes to the actual argument presented and to the grounds of the motions. The court does not transgress the prohibition of section 657 as to amendment of the order but rectifies its minutes to reflect accurately the showing made preceding the order. The section prohibits reformation of an order later than ten days from the date of its rendition; it does not bar conformation of the minutes to the facts which preceded the order.
The correction of the minutes did not violate the precept or purpose of section 657. While a judge's belated amendment of his own order might enable him to change its content and to alter the basis upon which it was granted by predicating it upon the insufficiency of the evidence, the order in this case was never changed. Since the correction did no more than describe the 'argument' and the motions upon which it was based, such clarification rather than fashioning a new order, merely recited truthfully the minutes supporting the old. The correction of the minutes here did not enable the judge, thru a nunc pro tunc procedure after the lapse of the ten day period, to reach back into his own mind and hold that his order, although not so stating, rested upon insufficiency of the evidence. The correction relates only to objective facts which should have been stated in the While it may be argued that the line between the nunc pro tunc amendment of the order and of the minutes is a fine one, we are told the cases that the code section should be liberally interpreted to preserve the right to a new trial. If the letter of the statute has been fulfilled, as it has been here, a strict and highly technical construction must yield to the more important right to state the truth in the minutes of the court which factually sustain the right to merited new trials.
We affirm the order.
BRAY, P.J., concurs.
DUNIWAY, Justice.
I dissent. I agree that the order granting new trial cannot be supported on the ground 'that the verdict is against law.' But I am of the opinion that the conclusive presumption, established by Code of Civil Procedure section 657, that the order was not granted on the ground of insufficiency of the evidence to justify the verdict, applies here. This being the only other ground of the motions, the order should be reversed.
The majority opinion disregards one of the two reasons for the 1939 amendment to Code of Civil Procedure section 657, which was to put a mandatory and jurisdictional ten day time limit upon the power of the court, by any order, nunc pro tunc or otherwise, to 'correct' the record so as to make its order granting a new trial comply with the requirements of the section. That is the substance of what the court did here, although, according to the majority, the form used was an order correcting, nunc pro tunc, the recitals in the minutes. Those recitals, however, were a part of the order as recorded by the clerk, and in any event, even if they were not a part of the order itself, could not be modified for the purpose or with the effect of defeating the conclusive presumption established by Code of Civil Procedure section 657, after the expiration of the ten day limit fixed by that section.
The majority say that the 'line' upon which they rely 'is a fine one.' To me, it is so fine as to be invisible. The 'third sentence' that the court below eliminated from its order, read: 'Argument is made by respective counsel and the motions are granted.' This was the order of the court. There was no other. 'In lieu' of that sentence, the court purported by its nunc pro tunc order, to insert:
'Counsel for plaintiff abandons and withdraws, as a ground for the said motions, the ground that the verdicts are against the law. The Court accepts said abandonment and withdrawal. Argument is made by respective counsel upon the sole gound of the insufficiency of the evidence to justify the verdicts and the motions are granted.' The majority draws its fine line just before the words 'the motions are granted' in the original order and in the corrected order.
To say that this is not a nunc pro tunc correction of the order is totally unrealistic. I am sure that the majority would be the first to hold, and I would agree with them, that the timely specification of the ground in a recital in the minutes, preceding the language stating the order itself, would comply with section 657, although that section says 'the order shall so specify.' I do not question the good faith of the court below, nor criticize the ingenuity of counsel is suggesting the particular form of order adopted by the court. I do say that if this procedure is sanctioned, the purpose of the Legislature in adopting the 1939 amendments to Code of Civil Procedure section 657 is defeated. I do not think that it is the function of the courts to defeat the objectives of valid legislative enactments by such means.
There can be no question as to the objective of the Legislature. As long ago as 1919, it amended the final paragraph of Code of Civil Procedure section 657 to require that the order specify the ground of insufficiency of the evidence, and to establish Between 1919 and 1939, the courts permitted nunc pro tunc orders correcting orders that did not specify the ground, as the code required, so as to make them specify; Lauchere v. Lambert, 210 Cal. 274, 291 P. 412; Livesay v. Deibert, 3 Cal.App.2d 140, 39 P.2d 466; Carson v. Emmons Draying & Safe Moving Co., 18 Cal.App.2d 326, 64 P.2d 176; Anderson v. Farquhar, 18 Cal.App.2d 392, 63 P.2d 1163; Keller v. Cleaver, 20 Cal.App.2d 364, 67 P.2d 131. Nunc pro tunc orders relating to new trials, except as to the problem with which we are concerned, may still be valid: Aylmer v. Aylmer, 139 Cal.App.2d 696, 294 P.2d 98.
Each time since 1939 that an appellate court has considered the reasons for these amendments, it has come to the same conclusion, that a nunc pro tunc 'correction' of the order is prohibited and invalid.
Moore, P.J., in Thomas v. Driscoll, 1940, 42 Cal.App.2d 23, at pages 27-28, 108 P.2d 43, at page 45: 'The contention that the court did not abuse its discretion by making the second order is beside the point. The amendment operates to deprive the court of discretion after the ten days have expired. If the court could make a nunc pro tunc order in cases where the grounds are the insufficiency of the evidence five months after the granting of the motion for a new trial, it would thereby effectively abrogate the statute which emphatically proscribes such an order after the lapse of the time designated. A determination by the judge that his failure to put his order in writing was a clerical error is not of sufficient potency to outweigh the plain letter of the code section. * * * If a court can now properly vitalize a void order by a belated entry, the amendment would have been in vain. In making the second order, the court did more than abuse its discretion; it exceeded its jurisdiction. To hold otherwise were to override legislative authority exercised within its constitutional province.' The nunc pro tunc order was held void.
Curtis, J., in Whitley v. Superior Court, 1941, 18 Cal.2d 75, at pages 78-79 and 80, 82, 113 P.2d 449, at page 452, reviewed the legislative and judicial history of the matter at length, and concluded, for a unanimous court: 'Manifestly, if this new requirement is not construed as mandatory, the rule regarding the filing of such order will remain the same as it was before the enactment of the amendment, which interpretation would render the amendment nugatory. * * * We are not here concerned with a mere error of record, but with a failure to comply with a jurisdictional requirement. * * * The above considerations impel the conclusion that the legislature by its amendment to section 657, Code of Civil Procedure, subdivision 7, intended to make it mandatory that a written order granting a new trial on the ground of the insufficiency of the evidence to sustain the verdict or decision be filed within ten days after the motion is granted or not at all, and that this time limitation applies to nunc pro tunc orders as well as to original orders made pursuant to this statutory provision.' Two nunc pro tunc orders were held void.
Schauer, P.J., in Cox v. Tyrone Power Enterprises, 1942, 49 Cal.App.2d 383, at 'It may be inferred with confidence that the legislature, in order to accomplish its purpose, deemed it necessary to require both that the ground be specified in writing and placed of record with the clerk within the limited period because it could be contemplated that records inevitably would appear before courts of appeal, declaring, by virtue of nunc pro tunc action subsequent to the ten-day period, that the trial court's records as originally inscribed failed to specify the mooted ground only through inadvertence, it having been truly as basis of the order (sustainable on no other ground)--and without the dual requirement, certainly such nunc pro tunc order, under a long line of cases, would prevail.' This language was dictum, because the question decided was whether a minute order rather than a separate signed order, is sufficient, but it was relied upon in subsequent cases.
Gibson, C.J., in Dempsey v. Market Street Ry. Co., 1943, 23 Cal.2d 110, at page 115, 142 P.2d 929, at page 931: 'The amendments were undoubtedly adopted first, to stop the prior practice by appellate courts of assuming that insufficiency of the evidence was the ground for the order, except where that ground was not stated in the motion or was excluded by the order, and second, to place a limit on the time within which the record may be corrected by a nunc pro tunc order.' This again was dictum, and for the same reason, but has likewise been followed.
Moore, P.J., in Gursey v. Campus Camera Shop, Inc., 1950, 98 Cal.App.2d 257, at page 262, 219 P.2d 884, at page 887, after quoting the foregoing language of the Chief Justice, said: '* * * [I]t must be held that although minute entry of the order granting a new trial for the insufficiency of the evidence is valid, yet neither such an order nor one formal in fashion can be amended nunc pro tunc after the court has lost jurisdiction of the case.' The decision also relied upon the reasoning of Justice Schauer in Cox, supra. The situation in Gursey was very similar to that in the present case, and the nunc pro tunc order was held void.
Vallee, J., in Roth v. Marston, 1952, 110 Cal.App.2d 249, at page 257, 242 P.2d 375, at page 380, after reviewing all of the foregoing cases and quoting extensively from the opinions, concludes: 'There can be no doubt that the 1939 amendment of section 657, as construed in the foregoing cases, curtails the inherent power of the court to correct a clerical error in a minute entry granting a motion for a new trial. If the court, in fact, grants the motion on the ground of the insufficiency of the evidence, and that ground is not specified in a minute order, or in a formal written order, the error can only be corrected by a nunc pro tunc order made and entered within ten days after the motion is granted. The nunc pro tunc order of March 15, 1951, was, therefore, a nullity, of no force or effect; and the order of January 19, 1951, which did not specify the insufficiency of the evidence, stands as the order of the court.'
Bray, J., in Ice-Kist Packing Co. v. J. F. Sloan Co., 157 Cal.App.2d 695, 321 P.2d 840, recognizes the rule of the foregoing cases in his comment on the Cox case (157 Cal.App.2d at page 697, 321 P.2d at page 841).
Wagler, J. pro tem., speaking for this court in Kralyevich v. Magrini, 172 Cal.App.2d 784, 787, 342 P.2d 903, followed the Roth case in holding a nunc pro tunc order void. The present majority concurred. Kaufman, P.J., Dooling and Draper, JJ., concurring, came to the same conclusion in Cook v. Bordi, 177 Cal.App.2d 112, 115, 1 Cal.Rptr. 886. Whitley, supra, was overruled in Dempsey, insofar as it indicated that a minute order is insufficient, but it is still good law as to nunc pro tunc orders.
There is no contrary authority. The only other case that I have found dealing with a nunc pro tunc order made after the 1939 amendment is Hoffman v. Johnson, 143 Cal.App.2d 767, 299 P.2d 913. There such an order, made pursuant to a stipulation of the parties, was upheld, but the court recognized the rule announced and applied in the foregoing cases, saying that 'the appellant had a right originally to insist on his rights under the statute.' 143 Cal.App.2d at page 770, 299 P.2d at page 916.
The cases relied upon in the majority opinion do not involve nunc pro tunc orders. All of them seem to me to strengthen my view that such orders are equally invalid whether they correct 'recitals' in the minutes or the 'order' itself. This is because they permit the court to find that the order specifies the ground of the motion, as the code requires, even when the ordering language does not. Thus, in several cases, although the 'order,' using the term in the narrow sense of the majority opinion, did not specify, as required by Code of Civil Procedure section 657, recitals in the same document, preceding the order, did so specify. In each case, the court held that the order did specify sufficiently. Thus the recitals were held to be a part of the order. Piru Citrus Ass'n v. Williams, 95 Cal.App.2d 911, 913-914, 214 P.2d 426; Bridgford v. Sawyer, 105 Cal.App.2d 631, 633, 234 P.2d 95; Casterline v. Young, 167 Cal.App.2d 669, 671-672, 334 P.2d 966; Pacific Hardware & Steed Co. v. Cheim, 169 Cal.App.2d 339, 341-343, 337 P.2d 508. The Casterline case goes so far as to consider a separate memorandum opinion of the judge, in construing the order (167 Cal.App.2d at page 672, 334 P.2d at page 968). A number of other cases hold that an order, which does not specify the ground of the motion, can be read with the notice of motion to find a sufficient specification. Cox v. Tyrone Power Enterprises, supra, 49 Cal.App.2d 383, 389-390, 121 P.2d 829; Van Ostrum v. State of California, 148 Cal.App.2d 1, 4, 306 P.2d 44; Ice-Kist Packing Co. v. J. F. Sloan Co., supra, 157 Cal.App.2d 695, 696-697, 321 P.2d 840; Kralyevich v. Magrini, supra, 172 Cal.App.2d 784, 342 P.2d 903. In Kralyevich the court even considered the points and authorities and argument in support of the motion (172 Cal.App.2d at page 790, 342 P.2d at page 906).
Obviously, under these cases, the word 'order' in Code of Civil Procedure section 657 has been held to have a much broader meaning than is given to it in the prevailing opinion in this case. If these cases demonstrate anything, they demonstrate that there is but one 'container,' the record, of which the order is a part, and on the basis of which it is construed. There is no separate series of small 'bottles,' bearing such labels as 'minutes,' or 'argument,' or 'notice of motion,' or 'opinion,' or 'points and authorities,' or what have you, into which, after the ten days have expired, the court can pour any 'old wine' by a nunc pro tunc order. I think the decision here, considered in the light of these cases, opens the door to evasion of the purposes for which Code of Civil Procedure section 657 was enacted. I am against it.
The appeal in this case was taken on May 14, 1959. At that time, on the basis of the record as it them was, the order was clearly reversible. The record was filed in this court August 21, 1959, and the opening brief was filed on September 14, 1959. The motion for a nunc pro tunc order was not filed below until December 11, 1959, and was heard and granted on December 22. This was obviously done because it had become apparent to the respondents' counsel, from appellant's beief, that unless the record could be corrected appellant must prevail. Counsel for respondents then, on January 13, 1960, moved this court to augment the record by including in it the nunc pro tunc order. We granted the motion on January 26. The ten days within which a corrective order could have been made under Counsel for appellant, acting in good faith, incurred the expense of the taking of the appeal, and now find themselves deprived of it by what I consider to be a void, retroactive order.
I would reverse. Moreover, if the order is to be affirmed, I would allow appellant the costs of preparation of the record, of the opening briefs, and of opposing the motions to augment. See Carson v. Emmons Draying & Safe Moving Co., supra, 18 Cal.App.2d 326, 330, 64 P.2d 176; same 18 Cal.App.2d 768, 64 P.2d 178.
On Petition for Rehearing
PER CURIAM.
The petition for a rehearing in the above entitled cases is granted.
The case of Aced v. Hobbs-Sesack Plumbing Co., 12 Cal.Rptr. 257, was filed in the Supreme Court of the State of California on April 6, 1961. Counsel are requested to file typewritten memoranda in which they discuss the effect, if any, of that decision upon the subject matter of these appeals. Appellants are granted 10 days to file such a memorandum and the respondents are granted 10 days thereafter to file a memorandum in reply, the causes then to be submitted.