*1 July 27, 18644. In Bank. A. No. 1943.] [L. Regional Planning SHRIMPTON, F. as Member of the B. etc., ah, Petitioners, THE SUPERIOR Commission, et COUNTY, Respondent. COURT ANGELES OF LOS H. O’Connor, County Counsel, J. Gaylord and Edward A. Vasey, Deputy County and Beach Counsel, for Petitioners. Courtney Respondent. A. Teel for CURTIS, J. Baldwin, In anaction Acker entitled Cal.2d 341 pending Court [115 P.2d of the County 1942, Angeles, plaintiff April 17, of Los on judgment against recovered defendants. Petitioner was one Defendants, defendants said action. permissible time, served a notice intention to move trial. Subsequently said motion was made and 22, 1942, court at hearing thereof on June an order vacating the the action judgment and dismissed ground jurisdiction on the had no action. On 1942, formal dis- there was entered 12, 1942, missal. on notice August Thereafter and and after set defendants, plaintiff moved the court to aside said order ground dismissal on the said of said This was void and excess court. motion was made under section 473 authorizing the on motion after to the cedure notice party to set aside void or order. On August trial court motion and set *2 vacating aside and vacated both 1942, judgment judgment 7, formal and the based August 19, 1942, said order. The effect this order of valid, judgment if original be to restore the rendered in that action in favor of the plaintiffs.
Thereupon petitioner, as one of the in said defendants action, instituted this certiorari date, last August 19, mentioned order of the court of petitioner judgment 1942. It the contention of that the is date, July action, 7, 1942, dismissing awas valid and judgment jurisdic- final court and that the trial was without tion judgment. to vacate the final
Preliminary discussion of the this to the merits of controversy, necessary pass upon consider and point by respondents, that certiorari raised will lie to August 19, 1942, order of for the reason that it review the judgment an order final and therefore ap- made after pealable. 1068,
Section Code of Civil Procedure, provides that “A may writ of review by any court, except muni- cipal, justice’s police or when an tribunal, inferior board, officer, exercising or judicial functions, has exceeded tribunal, board, of such or officer, and there nor, is no appeal, court, any plain,' ’’ speedy, adequate remedy. We unnecessary deem it to do more than cite few of holding decisions this court “certiorari will not lie review an order or either before or after expiration of the time limited law for there (Ivory Superior from.” Court, 455, 12 Cal.2d 459 P.2d [85 894]; v. Ten 12 Eyck, Harth 709 Cal.2d P.2d 16 [87 829 675]; Superior Court, Cal.2d P.2d an Co v. 14 [108 Cal.2d 591 ; Superior Court, Howaldt v. 18 P.2d Cal.2d [95 931] 114 333]; Superior P.2d America v. Court, Bank 20 [114 697, ; Cal.2d 703 Rehmke, P.2d Lewith v. 215 Cal. [128 357] 241 ; Superior Court, P.2d Cal.App.2d Casner v. 23 [9 297] 298].) page 732, P.2d In the last named case at we [74 the following
find statement the law: “The order of vacating court of dismissal was a after were judgment, respective also the ’ favor, and, such, appeal- defendants were provisions able under the of section 963 of the of Civil Code Procedure, [citing . . . Where law allows authorities] appeal from an order or even when the tribunal making rendering such order or such its. exceeds authority doing, granted, in so a writ of review not be ” [citing authorities.] against following
As decisions, these are cited to the we court, which, claimed, support cases it is decided contrary Superior Court, rule: Stanton Superior Lankton 5 Cal.2d [261 ; Superior P.2d Treat v. Cal.2d 1170] ; P.2d Whitley Cal.2d 147] P.2d In our all cases can be distin- these 449]. guished from the decisions that certiorari holding will lie to review an order. Stanton v. Court, supra, the trial two
actions pending before made an in each case purport- ing to vacate the previously therein, entered and a directed judgment, different signed and entered the same in lieu of the former judgment. On the court recited steps the taken in the two actions before the trial court resulting in the orders vacating the original judgments and entry the of the different judgments in place the of the for- judgments. mer The court also discussed power the of the court, trial procedure and the to be followed under sections 473, 663, and 663a of the of Code Civil Procedure, governing the vacation judgments of the entry of judg- different in ments the actions, same and concluded (page as follows: 489) are, “We therefore, satisfied that said of sections the code never were apply intended to judgments orders or attempted after the fashion herein disclosed. We are- also satisfied that neither of these subsequent orders or judgments can be special orders made after final judgment said. meaning of section 963 of the Code Pro- Civil cedure, because such section contemplates given orders by a court having court, to act.” therefore, The in the Stanton case held that as the in not were judgment, orders made after final they ap- were not pealable and were therefore pro- under ceedings in certiorari. Reference to this case be found Ivory supra, and Bank America Superior Court, supra. Superior Court, supra, Lankton v. after the judgment in favor of plaintiff had become final and the time appeal and motion for new trial elapsed, had the trial court in a memorandum purpose indicated its to reduce amount of plaintiff favor of in a material amount. Plaintiff applied either for or prohibition a writ of a writ of review. It was that held he a writ was entitled to prohibition review, but not a writ modifying as no order actually by had been trial court.
In Treat supra, the trial court set aside findings its plaintiff. in favor of It held that the court was authorized to make such order either provisions under the of section 662 of the cedure, is, upon that trial, by motion for new or of its power inherent to correct proceedings, mistakes and to annul within a reasonable time orders and prematurely, inadvertently, improvidently or How- made. ever, appeared from the record before that the order of trial court under attack was authority made under the of either of these methods of procedure. While a notice of intention to move for trial was filed at the same time as the motion to vacate (page it is opinion: stated 641) “There nothing any to indicate action before us upon the motion for a new the trial ever taken court,” and also (page 640) “Respondent claim advances no or original contention that findings and were prematurely improvidently or court in case made.” The authority held that the order the Stanton prescribed pursuance one rendered rules of as defined the sections of Code *4 in to attack a Civil Procedure and was therefore proceeding for a writ of review. Whitley supra,
In it sought was to review pro two nunc tunc orders of granting the trial court a motion for a new trial. As in amended section 657 of the Code of provides Civil Procedure that when a trial new
granted ground insufficiency evidence, on the the the of the in specify writing order the trial court shall shall so days be filed with the clerk within ten after the motion granted, appeal conclusively presumed otherwise on it bewill ground. that the the case upon order was not based that in made, which the these orders were the trial court trial, motion of for failed to file defendant a but new day a ten written order than order. After the minute period, later appealed. Almost two months plaintiff other, one in the instance and almost months three min- that apparently being the written filed the two entered, signed order ute was insufficient as pro that orders; nunc of which stated tunc the first made ground trial was upon granting order which the said evidence, the second of insufficiency was to file the written orders, failure recited was that (signed) day formal order the ten limit due was of the court and not of as had been inadvertence counsel signed stated in prior holding order. After that the court orders, and was to make either of without lie, reply to the contention certiorari not “Finally, an de- page objection court on 82 stated: as to a orders, validity pro termination of nunc tunc of these respondent urges point that a review is writ not remedy proper petitioner her has rule general by appeal. Respondent here attention calls (4 for that certiorari not be substitute used that an 1052). recognized Cal.Jur. But well likewise is not an provided our is not for which 1068, Code of section meaning order within the Procedure, of review application and an a writ Civil remedy, others the among Stanton proper [citing is the either in that case that claim Treat No was cases.]” made under section tunc orders was pro two nunc point therefore Procedure, and of the Code of Civil upon by the court in decision. passed just discussed, appeared In each the four cases there why general rule that will some certiorari not applicable. lie to from readily distinguished pro- the instant These eases can underlying ceeding. principle noted that the It will be decided, and which followed case was which-the Stanton
567 generally cases, the other was that the order of the trial pursuance any attack pre- court under was not of by of of scribed methods as defined August 19, 1942, Procedure. noted herein order of As setting aside the of dismissal was ren- order and of Civil pursuance dered of section 473 of the Code therefore, was, cedure. after It order made appealable. was
We are therefore of of view the overwhelm- state, ing weight authority in petition herein date, review the August 19, 1942, the trial court of purporting to vacate its order dated 1942, should be denied. unnecessary This conclusion renders to enter into any question validity discussion of the of said order August any or of question raised petition. petition
The denied for the hereinbefore stated. J., Shenk, Carter, J., and J., Sehauer, concurred.
TRAYNOR, J. I concurin the judgment. It is settled that certiorari does not lie to appealable review an order. (Cal. Code Proe., Civ. sec. 1068; see cases in 4 cited Cal.Jur. 1036 seq.) et Section 963 of the Code of Civil Procedure lists among appealable orders, “any special order made after judgment.” final Since August 19, 1942, was special order made after final was and certiorari is therefore not majority available. The opin- ion takes view, however, that the order in appealable not simply because it a special order after final but also pursuant because it made to an established method procedure, in this section 473 of the Code of Civil my opinion Procedure. It order after final judgment that affects 2 (see 153) Cal.Jur. whether or not it is pur- suant prescribed to a procedure. rule of exception The orders that are not authorized Code Civil Procedure was first into section 963 in 1927 in read the case of Stanton Superior 202 478 disregard Cal. P. [261 (Livermore numerous of long standing. cases Campbell, 75; In Bullock, Cal. re 75 Cal. 419 P. 540]; White v. Su- [17 perior Court, 471]; Cal. P. Anglo-California Bank [42 ; Cal. 753 Hildebrand v. P. 803]
Superior Court, 173 ; Magee Cal. P. 147] Cal.App. for additional eases see 2 Cal.Jur. 184 seq.) Cal.Jur. 1036 et
The holding in the Stanton case that section 963 “contem- plates given by a court having jurisdiction to act” (202 478, 489) apply as well to judgments, judgments both final and orders after such *6 are made in the same terms. No condition jurisdiction the court must have to act is set forth respect with to either, and justification there is no more for adding such a condition in the one ease than in the other. The Stanton case those based it departed have from established principles without adequate consideration of the authorities. These cases should be overruled and the law restored pattern traditional Superior as described v. Court, White Cal. P. at 57: “The question order in is a special order, made after and, such, made the appeal by express terms of statute (Code Proc., 3; Civ. sec. 2; subd. sec. subd. Sla- Superior vonic etc. Assn. Cal. P. Livermore v. 75; Campbell, Peyser, Cal. Calderwood 110); and, Cal. being appealable, so it cannot be reviewed by certiorari.
“Nor it does make difference if respect in this order be, contended, jurisdiction in excess of it, court making consequently void. Void appealable by are the less fact reason of that (Livermore Campbell, supra; remedy is and when that afforded it right certiorari, notwithstanding excludes the the order be (People Shepard, void the extreme sense. 115; Cal. Stoddard v. 278].) readily ‘It admitted,’ says be Mr. McFar- Justice land in delivering in the case last cited, order; jurisdiction ‘that the court had no to make but, lie, as the order appealable, certiorari will because ’ only lies when “there no appeal.” far,
“So then, remedy by as certiorari is concerned, wholly unprofitable to consider as to respondent make complained of.”
Gibson, J., Edmonds, J., C. concurred.