California MacHinery & Supply Co. v. University City Syndicate, Inc.

[426]

WILLIS, J.,

pro

tem.

The motion to strike the bill of exceptions must be denied. This in turn requires a denial of the motion to dismiss the appeal from or to affirm the second judgment, as this latter motion is predicated on a granting of the first.

In ruling on a motion for new trial addressed to the decision and judgment based thereon first filed and entered in this case, the trial court under authority of section 662 of the Code of Civil Procedure changed and added to its findings and conclusions in a material and substantial respect, and a modified judgment was entered in accordance therewith. This constituted a readjudication of the case. “The authorities are clear that a change which materially affects the judgment and the rights of the parties against whom it is rendered and which involves the exercise of judicial discretion amounts to a new judgment.”

(McConville

v.

Superior Court,

78 Cal. App. 203 [248 Pac. 553, 554], and cases there cited.) Within ten days after receiving written notice of entry of the second and modified judgment appellants served and filed their notice of intention to move for a new trial, which motion was heard and denied. The bill of exceptions herein was served and filed within the time allowed by law, and the order extending the same, after notice of the order denying this second motion, and such bill was duly settled and allowed. Any party aggrieved by a verdict or decision may move for a new trial. In legal acceptation a party is aggrieved by a decision or judgment based thereon when it operates upon his rights of property or bears directly upon his interest.

(Postal etc. Co.

v.

Superior Court,

22 Cal. App. 770 [136 Pac. 538].)

Prior to the enactment of section 662 of the Code of Civil Procedure the power of the court to change or correct its decision and judgment was limited to correction of clerical errors or errors resulting from, inadvertence, when the proceedings were still