54 P. 826 | Cal. | 1898
Plaintiffs, husband and wife, brought an action to quiet title, on complaint filed August 25, 1886, alleging ownership of the premises in the wife. Answers were filed for all the defendants, of whom there were many. The cause was tried, and findings were filed July 11, 1891, and judgment January 15, 1892. The judgment was that plaintiff Mrs. Tuffree was the owner in fee of the premises, and that defendant C. B. Polhemus has no right or title thereto, and that plaintiffs take nothing as to the other defendants. The cause was appealed by plaintiffs and by Polhemus to this court, and is reported in 108 Cal. 670, 51 Pac. 806. The judgment here, on that appeal, was given on October 2, 1895, and the judgment below was affirmed as to defendant Polhemus, and was reversed and judgment directed in favor of plaintiff Mrs. Tuffree as to all' the other defend
The appeals turn largely upon the question as to the effect of the judgment upon the defendant’s interest in the prem
1. Respondents contend that the order denying the motion to correct the judgment or the file mark is not appealable; citing Tregambo v. Mining Co., 57 Cal. 501; Swain v. Burnette, 89 Cal. 564, 26 Pac. 1093. In the first of these eases the court said that an order refusing to set aside a default is not an appealable order; and in the other case, where the court granted a nonsuit on defendant’s motion, and plaintiff moved to modify the judgment, this court said: “The order refusing to modify the judgment is not an appealable order.” The question arises under section 963 of the Code of Civil Procedure, which gives an appeal “from any special order made after final judgment.” The rule stated in 89 Cal. supra, must not be accepted as universal, but must be applied to the case as it there stood, where it appears that the appeal from the judgment gave plaintiff all the relief he could have received by the appeal from the order. We think the rule and its reason better stated iñ De La Montanya v. De La Montanya, 112 Cal. 101, 53 Am. St. Rep. 165, 32 L. R. A. 82, 44 Pac. 345, where it was held that an order refusing to set aside the judgment was appealable even though the judgment was appealable. Here, as in that case, the order is plainly within the statute, and, as there, an appeal upon the judgment-roll now here would not present all the facts upon which the motion is based. We see no reason why the appeal should not be entertained.
2. The view we have taken of the motion to annul the judgment as to Hopkins and Northam relieves us from the necessity of passing upon the question as to whether the conduct of the attorneys for all the original defendants and of the. attorney for the substituted defendant, appellant, estops the appellant from calling the judgment in question; and it also makes unnecessary a construction of section 385 of the Code of Civil Procedure, under which respondents claim that as to defendant, the transferee of the Hopkins and Northam interests, the proceedings were regular, and defendant will
The rule that allows a judgment void upon its face to be set aside upon motion is eminently wise and just, but so much cannot be said of a rule that would allow a judgment regular upon its face to be thus attacked. When a party is driven to evidence dehors the record to show that a judgment is void, and he does not proceed under section 473, supra, he should be permitted to do so only where the facts upon which he relies may be examined into under the forms and sanctions of a regular trial. The code furnishes ample remedy for cases of surprise, excusable neglect, inadvertence and mistake ; and this remedy is supplemented by the rule which allows the annulment by motion of a judgment within a reasonable time, when void upon its face. This, we think, is as far as the remedies should be carried by mere motion.
3. Respondents make the point that the notice of motion for new trial was not given in time. The findings on the original judgment, from which this present appeal is taken, were filed July 11, 1891, and judgment was entered January 16, 1892. The notice of intention to move for a new trial
The rule we have laid down by which this second appeal is held to be properly taken we do not think should entitle appellant to have the former decision of this court reviewed except upon matters not previously considered. A comparison of the present with the former record and the opinion found in 108 Cal., supra, we think will show that the merits involved in this appeal, so far as they are related to the facts, had full consideration in the first appeal.
4. Counsel calls attention to but one alleged error of law occurring at the trial and excepted to by defendants. The court, against objection, permitted the witness Tuffree to relate a conversation with George H. Howard about making selections of land. The objection was as to all defendants except Howard. The court overruled the objection, remarking: “If it is admitted in evidence I will undertake to take care of it, and see that it don’t harm anybody else.” We find no error in the ruling.
5. As to that part of the order refusing to correct the file mark, we do not see that any right involved in the appeal is affected by it, and we therefore do not pass upon the question presented by the motion. If, in any future litigation, the date of entry of judgment should become material, it may be deemed an open question.
6. The appeal from the judgment presents no question except as to whether it is in conformity with the directions of this court, and, as there is no dispute as to the fact, there is nothing in this appeal.
Our conclusion is that so much of the order as refused to amend the judgment, the order denying a new trial, and the judgment appealed from should be affirmed; and, as to the motion and order relating to the change of date in the file mark of the judgment, that the anpeal should be dismissed without prejudice.
We concur: Haynes, C.; Searls, C.
For the reasons given in the foregoing opinion, so much of the order as refuses to amend the judgment, the order denying a new trial, and the judgment appealed from are affirmed; and, as to the motion and order relating to the change of date in the file mark of the judgment, that the appeal is dismissed without prejudice.