*1 City June, C. C. Co. Co. 1916.] California Crescent appropriate allegations, nothing the absence there is in the information which under the letter received evidence was admissible. There a fatal was and material variаnce allegation proof in support offered thereof. appeal prosecuted defendant is from the denying trial, an his order motion for new both of which reversed. are
Conrey, and James, Appellate No. 1438. Third District. June
[Civ. 1916.] (a CALIFORNIA CENTRAL COMPANY CREAMERIES Corporation), Respondent, v. THE CITY CRESCENT LIGHT, (a WATER AND POWER COMPANY Cor- poration), Appellant.
Findings Party Judgment —Failure Adverse Serve not Void — not void its face reason of the failure of Face. —A copy pro- directed t'а to serve such posed findings, provided by as section 634 of Civil Pro- Code cedure, upon parties days all other to the action at least five before signed. such are Judgment—When Id. — Void. —A when, void an of inspection it the court either did jurisdiction. not have or has its exceeded Findings. Directing Preparation directing —An order Id. —Order preparation judgment-roll, and, is not therefore, thereof would not' disclose that such direction given. prom op Appeal op Proposed Judgment Id. — Service —Waiver Find ings Record.—Upon from judgment upon taken — appeal, presumed judgment-roll and statement on will be appellant him of findings, waived service respondent was pre the statement shows that directed where pare findings, prepared the same showing made that day, and no affirmative . consent to waiver service Proposed Findings. op op —The amendment Id. —Waiver Serviсe Procedure, pro- requiring section 634 the Code Civil service solely signing, posed least five at litigant, in the interest of and its be waived by them. 620 California C. Co. Superior
APPEAL from a Court of Del Judge. County. Childs, John Norte L. are facts statеd court. *2 Appellant. W. for Cutler, Miller,
P. A. and Robt. Mordecai, McNulty, George and McNab, W. Gavin Hersch & Respondent. Wyman, Oliver for B. tem,. appears in this J., pro the
ELLISON, —It from record 1915, day court, June, case di- on the sixteenth findings plaintiff prepare rectеd for the to plaintiff facts, judgment conclusions law and favor of against did defendant; and that counsel signed prepare judgment findings and such by day judge June, 1915, trial on said sixteenth provisions of section filed. Counsel invokes Procеdure, 634 of and claims that because the Code Civil days said him at least five be- not served being signed, judgment part fore void. is The said upon by section as follows: “In relied counsel worded party prepare findings, all cases where the directs a to court copy upon all the a shall be served of said findings shall be to action at least five before sign any by shall not and the court days.” expiration therein to the prior such five judgment jurisdiction The is not void. The court had 1. subject and of defendant. of the of the action matter jurisdiction judgment within rendered one inspec only when, upon an judgment void A the court. it the court either of the tion jurisdiction. “Whether a or hаs exceeded its have only face be determined judgment upon its can is void ’’ (People Temple, 103 inspection judgment-roll. Baldez, 91, 414]; Jacks 447, question is to be determined 899].) “The 69, only. (Butler Soule, of the’ record judgment itself affirma the record 601].) Unless jurisdiction ren without tively that the court shows (Canadian its face.” is not void on judgment, it der the 301].) Co., Clarita etc. etc. Co. v. June, California C. Co. v. 1916.] judgment prematurely Thus, rendered is not void. judgment against by de rendered and еntered defendant fault before the time allowed him to answer is law void, (In but Newman, erroneous. re Rep. Am. St. 16 Pac. attorney direction plaintiff's court that judgment-roll (sec. is no Proc.), inspection of and hence an it Code Civ. would not given. Upon such direction was face of
disclose competent appears a of a there subject jurisdiction, matter within its law properly it, such a it as was practice authorized make. No matter what errors procedure may occurred, have void,
held to be and is not. 2. Does record show error which the judgment ought to be reversed 1 is in purports
There what record to be a “Statement on Appеal,” and from we learn that court directed *3 findings, they for to and that did so, they filed expiration that were upon of five after for service counsel the defendant. presumed “It proceedings that the in the court below regular, upon were error where is claimed it is incumbent appellant affirmatively.” (Perry to show it v. Noonan J. Co., 8 App. 1128].) Furniture 35, Cal. “When [95 brought a trial review, of court is it is here upon appellant affirmatively incumbent re to show some versible error committed that If the court. upon
prosecuted appear the error must upon of the face the record. Not pre will error never be every presumption sumed but indulged will be in of favor upholding judgment.” (Bliss Sneath, v. 119 Cal. 848].) showing “In of an the absence affirmative findings support that in waived, were not the order it presumed they (Mulcahy that were Glazier, waived. v. 626; Tomlinson v. Ayres, 717].) merely not sufficient specify It is to absencе . in as error law . . but of findings, absence any waived, were not like other error relied reversal, appear on for be made body must to Caldfobnia C. Co. Crescent ’’ (Baker way. appropriate exceptions
bill or in some other Baker, support state, rule of law established this Under the nothing ap- regularity of the action the trial presumed pearing to will be contrary, findings or proposed him waived the service or them, him to еxamine days’ waived the five time allowed judge to the presented present that he was acquiesced in signature their objection, no but and made negative his consent being signed. then The record does not committed waiver, apparent and it is not that error signed. day they signing days’ time five finally 3. It is claimed a waiver of the give the could which to examine the expiration of that jurisdiction sign them before time. Pro 634 of Code of Civil to sectiоn amendment solely in the interest relied
cedure
suggest
trial
to the
opportunity
give
them
litigant, to
they desired
signing findings,
matters
certain
judge, before
own interests.
in their
therein
incorporated
to have
reason,
any
public
еnacted
amendment was
liti
be waived
a law could
of such
provides:
3513 of the Civil Code
Section
gant
clear.
seems
solely
advantage of a law intended
“Anyone
waive the
public
for a
a law established
But
.reason
for his benefit.
agreement.”
private
The dis
contravened
cannot be
second clauses of
the first and
application of
tinction
reasoning in
the case
illustrated
is well
the section
Rep.
Am.
Superior
St.
Court,
Grannis
sought
uphold final
case it was
In that
23,
Chipman, Hart, petition rehearing for a of this cause was denied appeal district July following court of and the opinion then rendered thereon:
ELLISON, rehearing J., pro petition tem.—In opinion filed herein is stated: “The herein is error stating appeal judgment-roll prosecuted from the that carefully fail alone.” We have reread any reasoning any suggest statement or that would that find considering deciding case, assumed, in we claimed or judgment-rоll. appeal consisted that the record opinion expressly contrary, On referred to ‘state appeal,” and discussed the force and effect of cer ment of facts therein contained. tain stаtements clearly considering case, all times had it at mind that judgment supported it was an from a “state purposes was deemed for all appeal,” ment on which a bill judg record full exceptions, and that the cоntained the to, as was also properly certified the “statement on ment-roll thought. had no other appeal,” and appellant, his brief filed for the before the cause Counsel point not raise the submitted, did was only contended it In erroneous, was void. consider but. void, that the we first con ing claim made judg of whether question sidered void, disclose that it was would and held that alone ment-roll stated in connection that It was the order it did not. directing inspec and an law a
not made any such order not disclose had ever it would tion face of “Upon made, said: been *5 C. C. v. California Co. judgment competent there a of a a court subject matter, its jurisdiction, within judgment properly before as it was law it and such practice authorized to make. No matter what errors procedure not be held to be occurred, still and conclusion. void.” We to the above statеment adhere opinion, (See, in addition to authorities referred to People Soule, Davis, Butter 651]; v. ; Baldez, Jacks 601] People Temple, 103 899]; page 2, looking opinion that, on
In over the it is noticed By inad- void.” line is said: “The is not omitted, prob- and it vertence the “on face” were words its meaning ably omission has misled counsel as to the this scope will be corrected and decision. is not void face.” read: “The its record, the wholе We next the case view of considered appeal. judgment-roll Prom including and statement on had ordered court found that the the statement we prepare findings; and that day, but we prepared the same affirmаtively show error, did not held that the statement waive service not that it did show that judgment could findings upon held that him, and shown, presump- all unless error was be-reversed regularity rulings, the court’s being tions favor provi- questions of whether the finding, аnd decision. Civil Procedure were man- Code of sions of section fully disposed purposes of for the directory were datory or its held that case, we of this litigants, from considerations benefit individual ’ litigant waive the five interest, could notice. consideration in have received careful in the case points
All appeal, and statement on light reached, petition conclusion being satisfied with rehearing is denied. Hart,
Chipman, supreme court, petition in the to have the cause heard appeal, district was denied after July 31, 1916. supreme court on