Opinion
Hearing Granted Oct. 5, 1960.
Opinion vacated 10 Cal.Rptr. 459.
Harold W. Kennedy, County Counsel, Los Angeles, and Thomas A. Porter, Deputy County Counsel, Long Beach, for appellant.
John Weaver Anderson and Joseph Joblin, Los Angeles, for respondent.
ASHBURN, Justice.
Appeal by the State from an order of January 14, 1960, vacating a bail forfeiture which had been ordered on October 15, 1959.
Defendant Black, being charged with a felony, posted a bail bond in the sum of $1,500 written by respondent National Automobile and Casualty Insurance Co. It was conditioned that defendant 'will appear in the above-named court on the date above 'If the forfeiture of this bond be ordered by the Court, judgment may be summarily made and entered forthwith against the said National Automobile and Casualty Insurance Co., a California corporation, for the amount of its undertaking herein, as provided by Sections 1305 and 1306 of the California Penal Code.'
Section 1305, Penal Code, reads as follows: 'If, without sufficient excuse, the defendant neglects to appear for arraignment or for trial or judgment, or upon any other occasion when his presence in court is lawfully required, or to surrender himself in execution of the judgment, the court must direct the fact to be entered upon its minutes and the undertaking of bail, or the money deposited instead of bail, as the case may be, must thereupon be declared forfeited. But if at any time within 90 days after such entry in the minutes, the defendant and his bail appear, and satisfactorily excuse the defendant's neglect or show to the satisfaction of the court that the absence of the defendant was not with the connivance of the bail, the court may direct the forfeiture of the undertaking or the deposit to be discharged upon such terms as may be just. If within said 90 days after such entry in the minutes, it be made to appear to the satisfaction of the court that the defendant is dead or is physically unable, by reason of illness or insanity, or by reason of detention by civil or military authorities, to appear in court at any time during said 90 days, and that the absence of the defendant was not with the connivance of the bail, the court may direct the forfeiture of the undertaking dertaking or the deposit to be discharged upon such terms as may be just.' Section 1306 provides for summary judgment upon the bond if the forfeiture has not been set aside within the 90 days prescribed by section 1305.
Defendant pleaded guilty on September 24, 1959, the matter was referred to the probation officer and other phases of the case--probation and sentence--were continued to October 15, 1959, at 9:30 a. m. Defendant failed to appear in court on that day and an order was thereupon made forfeiting bail and ordering issuance of a bench warrant. Defendant was arrested and produced in court on December 24, 1959, was then remanded to custody and the cause was continued to January 14, 1960, 'for violation hearing.'
On January 11, 1960, 88 days after bail was forfeited, respondent insurance company filed a Notice of Motion to Vacate Forfeiture and Exonerate Bail, which was set for hearing at 9:00 a. m. on that day and bore the district attorney's waiver of notice and consent that the motion be heard at the time and place mentioned therein. The motion was supported by an affidavit of defendant and an affidavit of 'non-collusion' made by an attorney-in-fact of the insurance company. The court heard the matter on that day. The judge remarked: 'He says here it was because he was having domestic difficulties. That is no reason. * * * I have nothing here to indicate that he was surrendered by the bail bondsman. * * * I see no basis from anything that has been produced here. I see no basis for setting it saide. If you have anything more, why, I will give you an opportunity to furnish it.' The motion was denied without prejudice on that 88th day, January 11, 1960.
Denial of a motion without prejdice puts an end to that particular proceeding and implies leave to renew upon new papers (cf. Bowers. v. Cherokee Bob, 46 Cal. 279, 286; Seletsky v. Third Ave. R. Co., 44 A.D. 632, 60 N.Y.S. 405; Wallace Cf. Wallace v. Lewis,
Wilkins v. Wilkins, 95 Cal.App.2d 611, 613, 213 P.2d 752, 753 cited by respondent, is not to the contrary. It holds that denial of a motion without prejudice 'leaves the whole subject in litigation as much open to another application as if no suit had ever been brought.' (Emphasis added.)
January 14, 1960, was one day after the expiration of the 90-day period prescribed by § 1306, Penal Code, and after the mandatory duty to enter summary judgment had matured. On that day the court made a nunc pro tunc order reading as follows: 'Deputy District Attorney William M Smith, present. The following minute order is made nunc pro tunc as of January 11, 1960: The order forfeiting bail is vacated and set aside and the surety is ordered to pay the sum of $500. to the Clerk of the Court. Bail is exonerated on payment of the $500.; $500. is paid.' For aught that appears this motion was not based upon a written notice and must have been oral; the Deputy District Attorney seems to have been voluntarily present as a matter of accommodation.
Pen.Code § 1306: 'When any bond is forfeited, if the court which has declared the same forfeited has civil jurisdiction to render judgment in an action arising upon a contract of similar nature and amount, 90 days after such forfeiture if the same has not been set aside, it shall enter a summary judgment against each bondsman named in such bond in the amount for which such bondsman shall have bound himself; if the court declaring such forfeiture has not jurisdiction to give judgment in an action arising upon a contract of similar nature and amount, said court 90 days after such forfeiture, if the same has not been set aside, shall deliver to the district attorney of the county in which said court is located said bond, together with a certified copy of its order declaring the same forfeited, and immediately thereafter said district attorney must file said bond and said certified copy of forfeiture in a court having jurisdiction to render judgment in an action arising upon a contract of similar nature and amount. The court in which said bond and certified copy of forfeiture shall be so filed shall forthwith enter a summary judgment against each bondsman named in such bond in the amount for which said bondsman shall have bound himself.'
Two significant facts are to be noted. There was no motion pending before the court at the expiration of the statutory 90-day period and the nunc pro tunc order of January 14, 1960, undertook to undo previous judicial action.
Respondent relies heavily upon People v. Wilcox, 53 Cal.2d 651, 2 Cal.Rptr. 754, wherein it was reled that § 1305, Penal Code, must be construed like § 473, Code of Civil Procedure, to permit a disposition of the motion after expiration of the period prescribed by the statute provided the notice of motion is given before that time is up. "The provision here as to the time limit for action is cast in a form quite similar to that of section 473 Code of Civil Procedure, where is construed to mean that if the application for relief is made within the time specified, the action of the court thereon may be taken after that time has expired. [Citations.]'
'The statement of the law in the Leach case [22 Cal.App.2d Supp. 735, 740, 65 P.2d 1364] is based on sound reasoning and justice. If relief may be applied for at any time within the ninety-day period certainly the court can not be expected to act on the application before the end of the period. Section 1306 cannot be construed to require a summary judgment when the court has pending before it an application for relief under section 1305 at the end of the ninetyday That case is not controlling here for it does not involve a ruling upon a motion made after the expiry of the statutory period and after a motion for relief from the forfeiture had been made and denied within that limit.
This is a strictly statutory proceeding and the measure of the court's power--its jurisdiction--is the statute. People v. Burton, 146 Cal.App.2d Supp. 878, 881, 305 P.2d 302, 304: '[B]y the amendments of 1927 the legislature put into operation an entirely new scheme for fixing liability of sureties on bail bonds. The bail bondsmen were required, P.C. Section[s] [1278], 1287, to consent to summary judgment against themselves as an integral part of the undertaking. Section 1306 of the Penal Code was recast to provide that ninety days after the declaration of forfeiture, unless set aside, the court 'shall * * * enter a summary judgment' against the bail. All directions to the court as to its duties are mandatory.'
Burtnett v. King, 33 Cal.2d 805, 807, 205 P.2d 657, 658, 12 A.L.R.2d 333: 'It has been held repeatedly, and recently, that where a statute requires a court to exercise its jurisdiction in a particular manner, follow a particular procedure, or subject to certain limitations, an act beyond those limits is in excess of its jurisdiction. [Citing 8 cases.]'
For this reason the court had no authority to make the nunc pro tunc order of January 14, 1960.
It is equally well settled that a nunc pro tunc order will not lie to change an order which correctly reflects judicial action taken by the court on a previous date. It is apparent from the instant record that the order of January 11th denying relief was based upon lack of adequate factual showing of excuse for defendant's failure to appear for sentencing. The court gave applicant an opportunity to make an additional showing but did not continue the motion for this purpose, denied it without prejudice and thus put respondent to the necessity of making a new motion. 'We construe this order to simply mean that appellant's motion was overruled. The words 'without prejudice' could mean nothing more than appellant's right to again make the motion was not foreclosed. * * * Nor, could the words 'at this time' render the order unappealable, since such words cannot be construed to mean a continuance of the motion to a future day or term of the court.' Keith v. Keith, 270 Ky. 655, 110 S.W.2d 424, 427. The court had no power to extend the statutory time and did not attempt to do so.
That the ruling of January 11 was a judicial act cannot be gainsaid. It is equally clear that it could not be changed nunc pro tunc. Mr. Justice Vallee stated the matter with perspicacity in Smith v. Smith, 115 Cal.App.2d 92, 99, 251 P.2d 720, 724: 'The function of a nunc pro tunc order is merely to correct the record of the judgment and not to alter the judgment actually rendered--not to make an order now for then, but to enter now for then an order previously made.'
This court said in Brown v. Brown, 162 Cal.App.2d 314, 319, 328 P.2d 4, 7: 'Trial courts can modify or amend their judgments only as prescribed by statute. Bowman v. Bowman, 29 Cal.2d 808, 814, 178 P.2d 751, 170 A.L.R. 246. A final judgment can be amended nunc pro tunc only for the purpose of making the record conform to the truth, and not for the purpose of revising and changing the judgment to correct a judicial error. McLaughlin v. McLaughlin, 141 Cal.App.2d 494, 496, 296 P.2d 878.'
Schroeder v. Superior Court, 73 Cal.App. 687, 692, 239 P. 65, 66: 'If the court has not rendered a judgment that it might or should have rendered, or if it has rendered an imperfect or improper one, it has no power to remedy such errors by ordering a judgment nunc pro tunc of a proper or desired judgment. For all of the foregoing reasons the order now on appeal is reversed.
FOX, P. J., and RICHARDS, J. pro tem., concur.