234 P. 432 | Cal. Ct. App. | 1925
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *99 This is a proceeding in prohibition to prevent the superior court for San Bernardino County from proceeding with the retrial of an action after an order granting defendant's motion for a new trial.
The action in which the new trial was granted is one in equity brought in the superior court for San Bernardino County by Sophia A. Finkle against F.C. Finkle to cancel an agreement for the conveyance of real property. It was tried in that court before a jury on October 16, 1923, the Honorable J.A. Smith, Judge of the superior court for Calaveras County, presiding. A verdict for the plaintiff was returned by the jury. The verdict, though advisory only — the case being of equitable cognizance — was evidently adopted by the court, for it is shown by the petition that on February 29, 1924, a judgment in accordance with the verdict was entered in favor of the plaintiff in the action. On March 5, 1924, notice of the entry of the judgment was served upon the defendant, who, within due time and on notice given by him as required by law, moved the court, Judge Smith presiding, to grant a new trial of the cause. The motion was taken under submission, and on May 5, 1924 — the last day allowed by the statute for acting upon the motion — Judge Smith, at Calaveras County, signed a written order in the case, which, after reciting the submission of the motion, reads as follows: "It is ordered that the motion for a new trial be and the same is hereby granted." This order was mailed by Judge Smith to the county clerk of San Bernardino County, by whom it was received and filed at San Bernardino on May 7, 1924. Thereafter the petitioners here, as executors of the last will and testament of *100 Sophia A. Finkle (they having been substituted as parties plaintiff for their testatrix, who had died in the meantime), moved these respondents to vacate the order granting the new trial. The motion was denied, and respondents are about to go forward with the retrial of the case. It is to prevent such retrial that this proceeding was brought.
Petitioners contend that the order of Judge Smith granting the motion for a new trial is a nullity for the reason that it was not made by the court within two months after notice of the entry of the judgment, and that under section
An order passing upon a motion for new trial is not one which a judge of the superior court has the right to make at chambers.[1] The powers of a judge at chambers are enumerated in section 166 of the Code of Civil Procedure, and the authority to pass upon a motion for new trial is not one of them. The determination of such a motion is a judicial act which, to be legal, must be performed by the court and not by a judge outside of the court. (Code Civ. Proc., sec.
[2] A court, as defined in Von Schmidt v. Widber,
The cases cited by respondents to the effect that a written order signed by the judge is valid when signed are not in point, for here the order was not one which the judge could make out of court. [3] Section 1004 of the Code of Civil *101
Procedure declares that "Orders made out of court may be made by the judge of the court in any part of the state." Obviously this provision is applicable only to such orders as a judge may make at chambers, or elsewhere out of court. It can have no application to an order which only the court can make, such, for example, as an order passing upon a motion for a new trial. If the power to pass upon the motion for new trial were one which could have been exercised by Judge Smith at chambers, it doubtless would have been operative when signed, and its filing in the clerk's office within the prescribed time would not have been essential to its validity. (Swift v. Canovan,
Respondents cite us to Comstock etc. Co. v. Superior Court,
[5] There is no merit in the claim that the order was but a mere irregularity which was waived by petitioner's failure to call it to the attention of the defendant in the action until after the time within which he might appeal from the judgment. The order was an absolute nullity, and ineffective for any purpose. (Shepherd v. Superior Court, supra.)
[6] Petitioners have no plain, speedy, and adequate remedy in the ordinary course of law. The case of Finkle v. Finkle was an equitable action. A trial by jury was therefore not a matter of right, and hence no appeal lies from the order purporting to grant a new trial. (Code Civ. Proc., sec. 963.)
The case is one which calls for the issuance of the writ of prohibition. It is true, as respondents very properly say, that the remedy afforded by prohibition is prohibitive rather than corrective, and the writ will only issue to restrain the commission of a future act and not simply to undo an act already performed. But here respondents, by persisting in their determination to go on with the retrial of the case of Finkle
v. Finkle, are about to take proceedings in the action which are in excess of their jurisdiction. Petitioners, therefore, are entitled to a writ of prohibition restraining respondents from proceeding with the trial. See Robson v. Superior Court,
Let a peremptory writ of prohibition issue in accordance with the views herein expressed
Works, J., and Craig, J., concurred.
A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on March 30, 1925.