78 P. 11 | Cal. | 1904
Lead Opinion
This is a petition for a writ of mandate requiring the defendants to issue execution upon a judgment.
The petitioner, in an action in the superior court, of which the defendants are respectively the judge and clerk, recovered a money judgment with costs. March 12, 1900, on motion of defendant in that action, the court made and filed a written decision directing the entry of an order granting a new trial "upon condition that the defendant, The Germania Life Insurance Company of New York, pay to the plaintiff, Ferdinand Holtum, the sum of one hundred and fifty-four dollars ($154.00) costs of trial,"within thirty days from that date. The order, as entered on the court minutes, stated the condition as indicated by the quotation-marks, and omitted the words italicized, limiting the time for performance. The defendant, however, on the ninth day of April, and within thirty days, duly tendered the proper amount to the plaintiff's attorney, who declined to accept it for the reason that he intended to appeal from the order. The next day, and upon proof of said tender and refusal, and the reason therefor, the court made and entered the following order exparte:
"Tuesday, April 10, 1900. In this action upon motion of G.W. Baker, attorney for the defendant, and it being made to appear to my satisfaction by the affidavit of the said G.W. Baker, and the written acknowledgment of the attorney for the plaintiff in said cause, that the sum of one hundred and fifty-four ($154) dollars, the costs of the plaintiff in the trial of said cause, which was ordered paid by the court as a condition for granting a new trial herein, was by the defendant duly tendered to the plaintiff through his counsel and declined. It is therefore ordered that said condition to the granting of said motion for a new trial be vacated and annulled and that said motion for a new trial in said cause, for the reason given in the former opinion of this court, be, and the same is made unconditional and absolute, from date hereof."
Subsequently, and within sixty days from the date of the original order, the plaintiff appealed therefrom to this court, *524
where it was affirmed. (Holtum v. Germania Life Ins. Co.,
The first question arising upon the facts stated is this: Was the order of April 10th, above quoted, void? If it was not void, it is of no consequence that it may have been erroneous, for the plaintiff by failure to appear has allowed it to become final and effective as an order granting a new trial absolutely, and the judgment being thereby vacated no execution can issue. In other words, this proceeding must fail unless the order of April 10th was void in the extreme sense for want of power in the court to change in a substantial respect the order of March 12th, by which the right to a new trial was made conditional.
The power of the court to make an order for a new trial conditional upon payment of costs by the moving party is unquestioned, and a failure to perform the condition converts the order into a denial of the motion. (Garoutte v. Haley,
It is contended that this was a proper thing to do, in view of the fact that the tender of the money and its refusal entitled the defendant to a new trial. But if the order was erroneous, tender of the money did not entitle the defendant to a new trial, for until the right of the plaintiff to appeal had been lost by lapse of the time for appealing, or by waiver or abandonment, it could not be assumed that the conditional order would ever become final by affirmance. And the refusal to accept the money tendered, upon the express ground that the plaintiff intended to appeal, was a good reason for not making the order absolute; the party resisting the motion cannot be forced into a new trial until the right to appeal is at an end, or the order has been affirmed.
Counsel are mistaken in assuming that such orders as that *526
of April 10th have never been set aside or reversed except upon appeal. In Lang v. Superior Court,
This brings us to the second question in the case: What was the duty of the defendant in the matter of performance? If the order had been entered as it was made, — requiring payment in thirty days, — or if the minutes had been corrected in this particular as they might have been, so as to make them speak the truth, there might be a question which does not arise on the case as it is; for the entry on the minutes was never corrected, and the order remains without any provision as to time of payment. Such an order may well be construed as requiring payment on demand, and no more beneficial construction for either party has been suggested by counsel, or has suggested itself. The party resisting the motion may be trusted to demand the money when he wants it. If he concludes to accept the order without an appeal he will demand the money at once — thus waiving an appeal — and press for a speedy retrial of the issues. If he determines to appeal he will delay his demand until the order is affirmed. In the mean time the moving party is secure of losing no right by delay or failure in making a tender. Here, after affirmance of the order demand was frequently and formally made in behalf of the petitioner for payment of his costs, and was refused *527
upon the ground that no payment was due. This, in view of the decisions in Garoutte v. Haley,
This did not, however, have the effect of making it the plain statutory duty of the clerk to issue execution. In cases of this kind the clerk cannot be expected to pass judicially upon the question whether a condition annexed to an order granting a new trial has been performed or not, and in any case he must be justified in awaiting the order of the court (where alone the question as to performance can be tried) before issuing execution. For this reason we do not think the petitioner has any right to a writ directed to the clerk. But as to the court the case is different. Upon the undisputed facts it is the duty of the court to order execution, and the only question is whether that right is enforceable by writ of mandate — which does not issue where there is a plain, speedy, and adequate remedy in the ordinary course of law. (Code Civ. Proc., sec. 1086.) Here it is suggested there is a plain, speedy, and adequate remedy by appeal from the order overruling the motion for execution, but this remedy although plain is neither speedy nor adequate. The appeal, in the ordinary course, would not be decided for a long time, and pending the appeal there would be no security for the payment of the judgment. And, besides, nothing would necessarily result from an appeal beyond a reversal of the order, and this would merely confirm the right of the petitioner to execution — a right already complete. So that unless the judgment of reversal was accompanied by a mandatory direction to order the issuance of execution, the petitioner would find himself at the end of his appeal precisely where he is now — with a right to demand the issuance of the writ, but with no power to compel it. Considerations such as these must have been the ground of decision in Garoutte v. Haley,
It is ordered that the writ be made peremptory as to the *528 superior court and issue accordingly. The proceedings as to the clerk are dismissed.
Shaw, J., McFarland, J., Lorigan, J., Henshaw, J., and Van Dyke, J., concurred.
Dissenting Opinion
I dissent. In my opinion, the order granting defendant's motion for a new trial upon condition that defendant pay $154 costs of trial within thirty days from the date thereof became absolute by reason of defendant's tender of the amount within that time. Compliance by the defendant with this condition, so far as it was not prevented from so complying by the acts of plaintiff, was all that was essential to render the order an absolute and unconditional order for a new trial. Its status was thereby finally determined, and it was thereafter, for all purposes, an order granting a new trial, and could not be converted into an order denying a new trial by reason of anything that might subsequently occur. The only right that could thereafter possibly remain in plaintiff thereunder was a right to recover the costs which he has once refused to accept. It is unnecessary here to determine how that right could be enforced, for that question is not involved herein. There is nothing inconsistent with these views in any of the cases cited. I am of the opinion that the application for a writ of mandate should be denied.
