Opinion
Hearing Granted by Supreme Court April 18, 1927.
Application by Fannie Stanton, as executrix of the estate of A. A. Stanton, deceased, and Fannie Stanton, individually, for writ of review to annul orders of the Superior Court of Los Angeles County, Hugh J. Crawford, Judge, vacating judgments in two separate actions, and entering other and different judgments in lieu thereof. Orders and judgments annulled.
COUNSEL
Kemper Campbell and A. W. Sorenson, both of Los Angeles, for petitioners.
Montgomery, Stick, Moerdyke & Gibson, of Los Angeles, for respondents.
OPINION
CRAIG, J.
These proceedings are instituted by the petitioners for the purpose of reviewing certain orders of the superior court of Los Angeles county setting aside the respective judgments in two separate actions, orders directing the entry of other judgments in lieu thereof, and such substituted judgments.
It appears that on November 9, 1925, Anna Grazide Alvarado and William P. Alvarado, her husband, commenced an action in said superior court, numbered 182980, wherein it was alleged that the plaintiffs were the owners of certain real property which they had theretofore leased to A. A. Stanton for oil-drilling purposes; that the defendants had failed to perform the conditions of such lease, and that the same had therefore been terminated; and the plaintiffs prayed for the possession of all the leased property, and for damages. The defendants answered, and also filed a cross-complaint by which they alleged that they were lawfully in possession of and entitled to retain 20 acres of the land above mentioned under an oral lease; that the plaintiffs had failed and refused to perform the conditions of such parol contract, as a result of which the cross-complainants had been damaged in the sum of $100,000, for which they in turn prayed judgment.
On March 13, 1926, Alvarado and wife filed a second suit in the superior court of the same county against the same defendants, wherein it was alleged that the latter claimed some interest in said property, and prayed a decree quieting title thereto. In such second proceeding, the answering defendants pleaded the pendency of another action involving the same cause, asserted a leasehold interest in 20 acres of the property described by the plaintiffs, and disclaimed any interest in the remainder. Counsel stipulated, and the trial court ordered, that the cross-complaint and the answer thereto in the first action should serve as such in both cases.
On April 23, 1926, it was stipulated by the respective counsel and ordered by the trial court that the two cases be consolidated and tried together. On the last-mentioned date evidence was introduced, and judgment was ordered "for defendants for $15,000 and specific performance." Findings of fact, conclusions of law, and judgment were made in case No. 182980 that the defendant Stanton "have, hold, and retain 20 acres" of said lands, and awarded to Stanton damages in the sum of $15,000, and directed that the plaintiff specifically perform the verbal lease. At the same time findings of fact, conclusions of law, and judgment were made in case No. 191794, reciting and decreeing that the defendant was entitled to, and that the plaintiffs be required to pay to Stanton, damages in the sum of $15,000, and specifically perform such lease. In this latter proceeding it was found that another action was pending between the same parties and involving the same cause of action.
The plaintiffs on July 1, 1926, served and filed in each suit a notice of intention to move that the judgment be vacated and for the entry of another and different judgment. Such motions were presented together on July 21, 1926, and on July 30, 1926, each was granted. In lieu of the original judgments, the trial court on September 8, 1926, decreed in the first action that plaintiffs’ title be quieted to all of the property, except 20 acres constituting the verbal leasehold interest of Stanton, and in the second suit it was adjudged that "defendants and cross-complainants have and recover from plaintiffs and cross-defendants $7,500," less the amount of a counterclaim for $850. The findings and conclusions of law in each case were allowed to stand, however, as originally made. In brief, as the record is here presented, notwithstanding the fact that the two cases were consolidated, the trial court appears to find from the facts and to conclude as a matter of law that the defendants are entitled to $15,000 damages in each case, whereas by its judgments the defendants are awarded one-half such amount in one case, and nothing in the other.
The defendant, A. A. Stanton, since deceased, is substituted by his widow, Fannie Stanton, as executrix of his estate, and she prosecutes this proceeding individually and as such representative, alleging that the trial court exceeded its jurisdiction in vacating the original judgments, and in rendering others in their stead.
Our statutes provide two modes of procedure by which, according to the existing circumstances, judgments may be vacated. Section 473 of the Code of Civil Procedure permits relief to a party or his legal representative from a judgment taken against him through his mistake, inadvertence, surprise or excusable neglect. The motions were not based upon any of these grounds. Section 663 of the same Code provides that:
"A judgment or decree of a superior court, when based upon findings of fact made by the court, or the special verdict of a jury, may, upon motion of the party aggrieved, be set aside and vacated by the same court, and another and different judgment entered, for either of the following causes materially affecting the substantial rights of such party and entitling him to a different judgment: 1. Incorrect or erroneous conclusions of law not consistent with or not supported by the findings of fact; and in such case when the judgment is set aside, the conclusions of law shall be amended and corrected. 2. A judgment or decree not consistent with or not supported by the special verdict." This latter section does not authorize the setting aside of a judgment upon the ground of inadvertence (Dolan v. Superior Court, 47 Cal.App. 235, 190 P. 469), nor did the respondents herein base their motions upon that ground. In considering the question as to the validity of the orders vacating the original judgments, we are therefore solely concerned with a consideration of the procedural requirements contained in section 663 of the Code of Civil Procedure.
Such motions must be supported by notice "specifying the particulars in which the conclusions of law are not consistent with the findings of fact," as required by section 663a of the Code of Civil Procedure, which section was added by amendment in 1915 (St. 1915, p. 203). The motions upon which the orders vacating the judgments were founded specified in each instance that (1) the judgment contained a copy of the lease, "many of the terms of which are not set forth or provided for in said findings of fact"; (2) that the judgment therefore attempts to make a lease for the defendants by order of court; (3) that the lease contained in the judgment is not the same as that specified in the findings; (4) that the judgment attempts to specifically enforce a lease not referred to in said findings, specifications 5 and 6 state the same grounds in other terms; (7) that the judgment "set forth a restraining order and an injunction against the plaintiffs and cross-defendants, and that there is no provision in said findings of fact for such injunction or restraining order"; and (8) "that said judgment is against law."
As we have seen, the motions to vacate the judgments were presented on July 21, orders granting them and directing the entry of new judgments were made on July 30, though the latter were not made nor signed until September 8, 1926, and the conclusions of law were not amended or corrected. That such vacating orders were nullities is obvious. In Dolan v. Superior Court, supra, it was held that sections 663 and 663a do not permit two orders to be made, one setting aside the judgment and another at a later date directing the entry of a different one, but that:
"If on the motion it appears to the court that the findings require the judgment to be set aside, it must also appear what conclusions of law should be made on the facts, and the only order within the power of the court under these circumstances is one setting aside the judgment and directing as a part of the same order the entry of another judgment. It is from such an order only that an appeal is provided. An order merely setting aside the judgment and leaving the case undetermined is void and not merely erroneous."
It will be observed that the proponents of such motions did not specify any particular in which the conclusions of law and the findings of fact were inconsistent; in fact, the notices fail to mention the conclusions of law. These purported motions, therefore, amounted to nothing more than abortive attacks upon the judgments themselves, and, since this procedure is not sanctioned by our statutes, there was nothing before the trial court upon which to base the action taken.
Respondents argue that the judgment is the "real conclusion of law," and supersedes any conclusion of law in the decision. Such is the rule upon an appeal from the judgment, but upon a motion under sections 663 and 663a of the Code of Civil Procedure, the conclusions of law, as evidenced by those sections, are the center of attack. In the latter instance the judgment is sustained or set aside, as the case may be, wholly depending upon the decision as to whether or not the conclusions of law are, or are not, consistent with the findings of fact. If the order be granted, the setting aside of the judgment necessarily follows, as well as the entry of a new one, but this results from the fact that the conclusions of law are inconsistent with the findings of fact. Both of the decisions cited by respondents were upon appealed cases. The respective judgments were affirmed, but in neither case was it stated what the result might have been, had the judgment and conclusions of law been contrary to the findings of fact.
It is true, as stated in Roberts v. Hall, 147 Cal. 434, 82 P. 66, that upon an appeal, where the contention is that the judgment is not supported by the findings, the conclusions of law are superseded by the judgment, and hence it is of no consequence that the conclusions do not support the judgment or have not been made to conform to the findings. But an entirely different question is presented here. The complaint is that the notice of motion to vacate was defective. That such a notice is essential and jurisdictional is clear. That a failure of the notice to state any ground for the granting of the motion would be equally fatal is also obvious. It follows that, even though a notice may state some ground, but none of those named in the statute as being the basis for the relief sought, the notice is as ineffective as though no ground had been specified.
An examination of the opinion in Roberts v. Hall, supra, shows that the complaint there made by the appellant was "that the ‘conclusions of law’ as stated in the decision of the court do not warrant all the provisions of the judgment as to the terms of the injunction awarded." Obviously the question presented here was not involved. In Wilkinson v. Grant, 46 Cal.App. 429, 189 P. 319, the other case cited by respondents, appeals were taken from judgments entered after motions to set aside other judgments had been granted. No question was raised as to the sufficiency of the notices of the motions, nor could there be upon appeals from the judgments. An appeal is authorized to be taken from an order setting aside a judgment originally entered, and upon such appeal the sufficiency of the grounds set forth in the notice might be decided; but in neither of the cases just mentioned was an appeal taken from such order nor the sufficiency of the notice made a ground of complaint.
Respondents also argue at length questions which constitute subjects of appeal only. On every question except that of power to act the orders and rulings of the superior court are final and conclusive when attempted to be controverted in certiorari proceedings. Fleming v. Superior Court, 196 Cal. 344, 238 P. 88.
The orders vacating the judgments and directing the entry of different judgments in lieu thereof, and said last-named judgments, are annulled.
We concur: WORKS, P. J.; THOMPSON, J.