164 P. 894 | Cal. | 1917
This is an appeal from a final order or judgment dismissing the action.
The order dismissing the action was made on September 14, 1914, in pursuance of a motion by the defendants, under section
The action was begun on March 24, 1906. Prior to 1909 a judgment of dismissal was entered, because of the failure of the plaintiff to file an amended complaint in accordance with the orders of the court. The plaintiff appealed and the judgment was reversed on March 11, 1909, the decision holding that the original complaint stated a cause of action for the specific performance of a contract by Huntington, one of the defendants, to transfer to the plaintiff's assignor certain shares of corporate stock, the other defendants being made parties solely because they were trustees for Huntington or assignees with notice. (Kinard v. Jordan,
The portion of section
The motion purports to be made by all the defendants, including Huntington. So far as he is concerned, it is clearly erroneous. He has never filed an answer, and his default was entered for not answering. The judgment against him was reversed, but the default still stands. The reversal was based on grounds which do not affect the validity of the default. As to him, the ground on which the motion was made did not exist.
The other defendants insist that the order was properly made because of proceedings in the court below after they had appealed from the judgment of November 8, 1911, against them. The record shows that a few weeks after the filing of their notice of appeal from the judgment of November 8, 1911, the following order was made: "In this case upon the court's own motion, plaintiff in person, and counsel for defendants consenting thereto: It is hereby ordered, that the judgment heretofore entered in favor of the plaintiff and against the defendants, other than the defendant F.A. Huntington, be, and the same is hereby set aside."
The claim is that this order vacated the judgment which was the subject of the appeal previously taken, set the case at large, and made it the duty of the plaintiff to proceed with due diligence to bring the case to trial. The appeal taken by these defendants removed the case from the jurisdiction of the superior court. It was no longer pending therein for *16
the purpose of amending the judgment or of vacating it for errors apparent on the face of the record. The consent of the parties could not reinvest the court with jurisdiction of that subject matter. The lower court, therefore, had no power to make the order, and it must be deemed a nullity. (Parkside etc.Co. v. MacDonald,
The judgment of dismissal is reversed.
Sloss, J., and Lawlor, J., concurred.