177 P. 299 | Cal. Ct. App. | 1918
The action was commenced to recover damages for land overflowed by an alleged negligently constructed *650 and maintained canal. The cause was tried by the court with a jury, and, on July 1, 1916, the jury rendered a verdict for plaintiff in the sum of $4,611. Judgment on the verdict was rendered on the same day and was recorded July 3, 1916. On July 7th, defendant duly served and filed its motion for a new trial. The motion came on to be heard, was argued and submitted and the court made the following order: "Motion for new trial having been heretofore argued and submitted, it is ordered that the said motion [be] and the same is hereby granted, unless plaintiff consents to a reduction of the verdict, as follows, to wit: all in excess of twenty-one hundred fifty-one and 25/100 dollars and costs must be remitted by plaintiff to defendant or a new trial is granted."
On September 19, 1916, the court made the following order: "It is ordered that the order heretofore entered, to wit: on Sept. 18th, relative to motion for new trial in the above entitled action, be and the same is hereby changed and modified to correct a mistake arising through inadvertence incorrectly recalling the testimony of plaintiff and other witnesses, and that the following be and is the order of said court: That unless the plaintiff files his written acceptance in this court of a reduction of the judgment heretofore entered in said cause in the sum of forty-six hundred and eleven dollars ($4,611), and five hundred and seventy-four and 05/100 ($574.05) dollars costs of suit, to the sum of twenty-seven hundred and eighty-eight ($2,788) dollars and five hundred seventy-four and 05/100 ($574.05) dollars costs of suit, the motion for a new trial be granted, and in the event of the filing of said written acceptance, it is ordered that said motion for a new trial be denied."
The second order was made ex parte without notice to defendant, apparently on the court's own motion. The first order was not consented to nor was it accepted by plaintiff, but, on September 19, 1916, plaintiff filed notice of his consent "in accordance with the order entered on motion for a new trial in said cause, on the nineteenth day of September, 1916." It appeared that defendant had no intimation that the court contemplated making the second order until September 27, 1916, when "defendant was preparing the records for the appeal herein, on the last day allowed by law for giving *651 notice to have the record prepared and certified, under the provisions of law."
Defendant served and filed its notice of motion to set aside the said order of September 19, 1916. Said motion came on to be heard October 16, 1916, on the records in the case and on the affidavit of defendant's attorney, in which the facts above set forth were stated, and, on the same day, to wit, October 16, 1916, the court denied the motion. Defendant appealed from the judgment; also from the order made and entered October 16, 1916; also from the order made and entered September 19, 1916; also from the order made and entered September 18, 1916.
In Carpenter v. Superior Court,
In Holtum v. Grief,
The contention of appellant is that the first order was duly entered after hearing and argument; that there was no clerical mistake or misprision and no inadvertence in making the order; that the order was not consented to or accepted by plaintiff and by its terms a new trial was therefore granted. The only exception to the rule as laid down in the cases is where the judgment or order "has been entered prematurely or by inadvertence," as stated in Holtum v. Grief, supra. The second order recited that the first order is modified "to correct a mistake arising through inadvertence incorrectly recalling the testimony of plaintiff and other witnesses." Misapprehension as to the nature and extent of the testimony or of the effect of the testimony is not inadvertence. To warrant a practice by which the trial court, after an order has been regularly and deliberately entered, could after reflection for a day re-examine or recall the testimony and reach a different conclusion and set aside his order thus regularly and deliberately made, would introduce a most dangerous rule. The reason for making the order can mean nothing less than that upon a re-examination of the testimony the court has reached a different conclusion. The court added to the amount of recovery the substantial sum of $637.75, and this without notice to defendant. If, as has been held, orders or judgments may be set aside when entered prematurely or by inadvertence, it should be, it seems to us, on a proper showing. "The term 'inadvertence,' in code sections 4501, 4502, allowing the supreme court after the term to vacate or correct mistakes in judgments given through inadvertence or oversight, does not apply to any judgment which was given upon the deliberate consideration and judgment of the court, though the court may have since adopted a different ruling as correct. It will be seen that the case provided is where judgment is given through inadvertence or oversight, and not where an opinion is formedfrom inadvertence and oversight." (Russell v. Colyer, 51 Tenn. [4 Heisk.] 154, 176; 4 Words and Phrases Judicially Defined, p. 3489.)
Wiggin v. Superior Court,
We think defendant's right to a new trial, contingent upon plaintiff's failure to consent to or accept the order first made, was as sacred as plaintiff's right to a denial of a new trial upon his performance of the condition. In the present case, the order was that the motion for a new trial be granted "unless plaintiff files his written acceptance in this court of a reduction of the judgment," etc. Plaintiff did not file any acceptance under this order. The order, therefore, became operative granting defendant a new trial.
The judgment and the order appealed from are reversed and the cause remanded for a new trial. It is further ordered that the cause be heard on the testimony and evidence, or such parts thereof as the parties may desire to introduce, submitted at the former trial, and upon such further evidence as the parties, or either of them, may deem proper to offer.
Hart, J., and Burnett, J., concurred. *654