231 P. 744 | Cal. | 1924
This is a motion to dismiss an appeal taken by the above-named respondents from an order of the superior court of the city and county of San Francisco, department 8 thereof, Honorable T.I. Fitzpatrick, Judge presiding, granting a motion for a new trial interposed on behalf of petitioner, following the reversal by this court of a judgment based upon a petition for partial distribution in the above-entitled estate (
It appears that petitioner, a minor, through Lydia M. Valencia, his mother, petitioned the said superior court for an order of partial distribution in the above-entitled estate upon the ground petitioner was the adopted son and heir of the decedent as aforesaid and that decedent left a last will in which he made no provision for petitioner. Issue was joined and the case was tried by the court, sitting without a jury. The court found in favor of respondents upon the ground that the evidence did not establish an adoption and judgment was accordingly entered. An appeal was taken by petitioner from the judgment which judgment was reversed upon the ground the trial court erred in denying petitioner's demand for a jury trial. (Estate of Baird,
"It is ordered, adjudged and decreed by the Court that the Decree of Partial Distribution of the Superior Court in and for the City and County of San Francisco in the above entitled cause be and the same is hereby reversed and the trial court is ordered and directed to set aside the special verdicts and findings and to enter judgment for appellants denying the petition for partial distribution upon the ground that respondent is not the adopted son or heir of the deceased."
Upon the going down of the remittitur judgment was accordingly entered in favor of respondents, whereupon petitioner interposed a motion for a new trial, which was granted, the order being as follows:
"In the above entitled action it appearing from the record that the petitioner, David Jennings Baird, a minor, . . . has heretofore served and filed two notices of intention to move for a new trial herein . . . and the court being fully advised in the premises, it is now here ordered that said motions for a new trial be . . . hereby granted upon all the grounds specified . . . except upon the grounds specified in subdivisions 1, 2, 3, and 5 of section 657, C.C.P. and in this regard the court in accordance with said section 657, C.C.P. doth further grant said motion for a new trial in addition upon the ground of the insufficiency of the evidence to justify and sustain the verdict and the decision, and in this regard the court doth specify that in its opinion and decision herein certain testimony of certain of the witnesses who testified on behalf of the respondents to the petition herein is not true and that said testimony is not believed by the court to be credible and true and therefore that the decision herein is not sustained by the evidence."
While the said motion for a new trial was pending an application was made by respondents to this court for a writ of prohibition to restrain the said superior court and the said judge thereof from entertaining the said motion for a *63 new trial. The application was denied. After the order for a new trial was granted another application for prohibition was made by respondents to prevent the said superior court and the said judge thereof from proceeding with the trial of the case. This application was also denied.
As we have said, an appeal was later taken by respondents from the said order granting the new trial and the pending motion to dismiss the appeal was then interposed.
The motion to dismiss the appeal is made on the following grounds:
"1. That said order granting a new trial is not an appealable order. 2. That said order granting a new trial is not an appealable order for the reason that the judgment rendered and entered, and which was vacated by said order granting a new trial, was not, in fact, entered after the cause had been tried before a jury but was entered by the court without any hearing or trial before a jury. 3. The only instance in which an order granting a new trial is appealable is the instance specified in Section 963, C.C.P. where the cause has been tried before a jury and judgment entered in favor of a party upon the verdict in his favor which judgment and verdict has been set aside upon the application of the adverse or losing party. 4. That the proper construction to be given to said code section is, that it applies only (a) To those instances in which the verdict in favor of a party has been set aside at the instance of an adverse party; and (b) Not to a case where the verdict having been rendered in favor of a party the judgment thereupon has been set aside and another judgment entered in favor of the losing party without the intervention of a jury, and without any trial before a jury prior to the entry of such latter judgment which was rendered by the court; and (c) The judgment set aside by the order granting a new trial, which order it is now sought to appeal from, cannot be based upon the verdict of the jury because it is directly contrary to the only verdict which had ever been rendered by the jury in this action."
In support of said motion to dismiss, the affidavit of R.P. Henshall, one of the attorneys for the petitioner, was filed, stating that on April 22, 1924, the said superior court made and entered the following final judgment: *64
"Order Setting Aside Special Verdicts and Findings and Denying Petition for Partial Distribution. It appearing to the court that on the 27th day of April, 1914, David Jennings Baird, a minor, by his guardian, Lydia M. Valencia, filed herein his amended petition for partial distribution of the above entitled estate . . . and that thereafter this amended petition came on for hearing before this court and a jury, and that on the 17th day of October, 1921, said jury returned its verdict in favor of said David Baird, a minor, on the special issues submitted by the Court to said jury . . . and the Court thereupon approved and accepted and adopted the said verdicts and made and caused to be entered its findings of fact and conclusions of law . . . that on the 19th day of December, 1921, this court made and entered its decree of distribution distributing to the said David Jennings Baird, a minor, all of the property of the estate of the above-named deceased . . . and it further appearing that an appeal was taken to the Supreme Court . . . judgment denying the said petition for partial distribution upon the ground that said David Jennings Baird, a minor, is not the adopted son or heir of the said deceased . . . and . . . a remittitur from said Supreme Court is on file . . . in the words and figures following: `. . . It is ordered, adjudged and decreed by the Court that the Decree of Partial Distribution of the Superior Court . . . be and the same is hereby reversed and the trial court is ordered and directed to set aside the special verdicts and findings and to enter judgment for appellants . . .' now, therefore, pursuant to said remittitur, and not otherwise, and without any trial or hearing, or evidence taken and against the protest, objection and exception of the aforesaid David Jennings Baird, a minor . . . special verdicts and findings . . . are hereby vacated, annulled and set aside and the said petition for partial distribution . . . is hereby denied."
The affidavit of R.P. Henshall avers that the motion for a new trial came on duly and regularly for hearing before the said superior court; that affidavits and counter-affidavits upon the question of newly discovered evidence were offered and received in evidence; that the entire phonographic report of the previous trial together with all the exhibits introduced in evidence in the form of original testimony showing the exact proceedings at the trial, all of which had *65
not been reduced in any form and did not appear in the bill of exceptions which was before the supreme court when the judgment was reversed; and that in accordance with the provisions of section
Petitioner, in making the motion to dismiss the appeal from the order granting the new trial, contends that subdivision 2 of section 963 of the Code of Civil Procedure, that an appeal may be taken "from an order granting a new trial or denying a motion for judgment notwithstanding the verdict, in an action or proceeding tried by a jury where such trial by jury is a matter of right," means that there must have been an actual trial before a jury with a verdict upon which the judgment rests, and that in this case the judgment which was entered by the direction of the supreme court and set aside by the order granting a new trial did not rest upon any verdict of a jury or upon any finding of the court, but was entered pursuant to the mandate or remittitur of the supreme court. It is, therefore, urged that as there was no jury trial, and as section 963 contemplates that it is only when there has been a verdict upon which the judgment rests that an order granting a new trial is appealable, the appeal from the order granting a new trial does not fall within the exception and must be dismissed. The contention that the order is not appealable is based upon the argument (1) that because the judgment recites the remittitur of the supreme court as its only basis — "pursuant to said remittitur and not otherwise" — that judgment was ordered, and because it recited that it was entered "without any trial or hearing or evidence taken and against the protest, objection and exception of the aforesaid David Jennings Baird," there has been no trial; and (2) that the judgment does not rest upon any verdict of any jury at any time because the only verdicts rendered were vacated, annulled, and set aside by the terms of the judgment itself; and (3) that the mandate of the supreme court to enter judgment denying the petition for partial distribution is void because the verdicts and findings having been set aside there is nothing upon which to enter the judgment except the evidence; *66 and that an appellate court has no constitutional authority to direct judgment upon the evidence.
The affidavit of Karl C. Partridge, attorney for respondents, was filed, setting forth the history of the proceedings in the above-entitled estate. It appears that on the trial when petitioner rested a motion for nonsuit was interposed and denied, and that at the close of the evidence the respondents moved the court for a directed verdict, which motion was denied, and that in reversing the order of partial distribution this court held that both motions should have been granted (
Respondents contend that the proceeding in which the new trial was granted has been tried by a jury; that a trial by jury was a matter of right, and that "what the Supreme Court in effect did by its judgment was to order the judgment which should have been entered by the trial court on a directed verdict. Therefore, the effect of the order granting the new trial is to set aside the directed verdict and the judgment based thereon. Counsel insist that the judgment set aside was one which was not based on any verdict, but merely on a mandate of the Supreme Court, and without any hearing or trial, and much is made of the recitals in the judgment entered by the trial court to the effect that it is made pursuant to the remittitur and not otherwise. The position of counsel in this regard is, to say the least, inconsistent, for if there has been no trial or hearing, or evidence taken, as recited in the trial court's judgment, it is difficult to understand on what theory a new trial could be granted." After citing Hawke v. Hawke et al., 82 Hun, 439 [31 N.Y. Supp. 968], and Katz v. Schnaier et al., 87 Hun, 343 [34 N.Y. Supp. 315], and quoting therefrom, respondents contend that "applying the same reason to this case, it would seem that the proper construction to be placed on Section 963, C.C.P. is that what is meant by an action *67 or proceeding tried by a jury is a trial by jury under the direction of the court subject to existing laws, one of which is that the trial court has the power in such a case as this to direct a verdict, and, although the verdict is rendered under the direction of the court, it is, nevertheless, a proceeding tried by a jury."
The petitioner, on the other hand, argues that "it is perfectly manifest from the statute that what is meant by a trial by jury is that instance in which a verdict having been rendered in favor of a party and judgment entered thereupon in his favor and the court below, at the instance of the other party, sets aside that judgment and verdict and grants a new trial, that the right of appeal exists in favor of the person in whose favor the verdictwas rendered. This is so because the right to trial by jury is highly favored in law; and it is to protect a party who has obtained a verdict against losing the fruits of a jury's decision that the right of appeal in that instance is granted him from the order setting aside the verdict and granting a new trial." This language indicates that petitioner regards the "verdict" of a jury as the essential element of a trial by jury. As a matter of fact, the constitutional guarantee of a jury trial is fully observed when the verdict of the jury in the case is rendered and recorded (Estate of Bainbridge,
Petitioner contends that even in a case where the verdict was directed by the trial court no appeal could be taken from an order granting a new trial, citing Estate of Sharon,
It follows from what we have said that there is no merit in petitioner's contention that even in a case where the verdict is directed by the trial court no appeal can be taken from an order granting a new trial.
Petitioner makes the further claim that this court was without authority to direct the superior court to set aside the special verdicts and findings and to enter judgment for respondents. In the Estate of Baird,
Since this is an appeal "from an order granting a new trial . . . in an action or proceeding tried by a jury" — within the meaning of section 963 of the Code of Civil Procedure — petitioner's motion is without merit.
Motion to dismiss the appeal denied.
Richards, J., Lennon, J., Waste, J., Seawell, J., Shenk, J., and Myers, C.J., concurred.