190 P. 469 | Cal. Ct. App. | 1920
The petitioner, wife of William Lawrence Dolan, joined as one of the respondents here, was granted an interlocutory decree of divorce on the ground of extreme cruelty. By the decree certain provision was made for the maintenance of four minor children and certain community property was set aside to the wife. The decree also determined that other real property, the title to which it is averred stood of record in the name of the wife, was her separate property. The decree was made and entered on November 14, 1919, and thereafter on November 28, 1919, notice of motion for new trial was served and filed. [1] On the same day a single notice of motion to vacate the *237
judgment was served. Two grounds were specified, the first being that the conclusions of law were not consistent with, nor supported by, the findings; and the second, that the findings were signed inadvertently in that they were not first presented to the defendant or his counsel. A motion to vacate the judgment, based on the first ground, was permissible under sections
Both motions, together with a cross-motion for additional attorney's fees, were presented to the court on January 30, 1920, the case having been transferred from the department of the superior court in San Francisco where it was first tried to another department presided over by a different judge.
The minute order made on January 30, 1920, did not mention the presentation or submission of the defendant's motion for a new trial. It stated that the defendant's motion to vacate the judgment was submitted and taken under consideration and that the plaintiff's motion for counsel fees was similarly submitted. On February 13, 1920, a minute entry was made. It recited that the court having considered and being fully advised concerning defendant's motion to vacate the judgment it is ordered that the motion be granted as to the property rights of the parties. If the court had considered that motion as one made pursuant to section
On February 25, 1920, two minute orders were made, the first reading: "It appearing to the satisfaction of the court that the order heretofore made herein on the thirtieth day of January, 1920, to wit: Submitting the defendant's motion for a new trial having been inadvertently not entered, it is by the court ordered that the entry of said order be made this daynunc pro tunc, as of the thirtieth day of January, 1920. And it is further ordered that said defendant's motion for a new trial be, and the same is hereby, granted as to the property rights of the said parties to the said action, otherwise said defendant's motion stands denied, and it is further ordered that said order be entered this day nunc pro tunc as of February 13, 1920."
[3] The first clause of this order was clearly within the power of the court, which may always correct its minutes so that they shall speak the truth. (Garoutte v. Haley,
What has been said concerning the ineffectiveness of the affidavit to contradict the record certified gains force in considering the effect of another order made on February 25th. It is as follows: "It appearing to the satisfaction of the court that the order heretofore made and entered on the 13th day of February, 1920, to wit: Granting the defendant's motion for an order vacating the judgment and decree heretofore entered herein and based on the findings of fact made by said court, as to the property rights, having been inadvertently made, it is by the court ordered that said order be and the same is hereby vacated and set aside, and it is further ordered that said defendant's motion . . . be and the same is hereby denied, and it is further ordered that said order be entered this day nunc pro tunc as of February 13, 1920." A reading of this order in connection with the order purporting to grant a new trial can leave no doubt upon the question concerning what orders were made on February 13th, nor that when the court reconsidered them on February 25th the judge concluded and quite clearly stated that he made the order vacating the judgment and did not make the order granting a new trial on February 13th, although he may have intended to do just what he attempted to do on February 25th.
Because of the action of the trial court in making the order purporting to vacate the order setting aside the judgment in part, it is deemed proper for the information of the trial court and of counsel to state the views of this court in regard thereto, in order that there may be no misconception of the effect of this decision. The second order purporting to set aside the order vacating the judgment was invalid if the first order be considered as having any effect. [5] Assuming the validity of the first order, it was subject only to be set aside on appeal or under proper proceedings under section
The validity of the order vacating the judgment depends upon whether or not it is within the powers defined in sections
The order granting the new trial and the order vacating the judgment respectively are annulled.
Langdon, P. J., concurred.
Nourse, J., having rendered the judgment attacked in the proceeding herein reviewed, did not participate in the decision. *242