TRAYNOR, J. I dissent.
On January 8, 1948, petitioner, defendant in an action for damages, noticed a motion to dismiss the action under section 583 of the Code of Civil Procedure for failure to bring it to trial within two years from the time of filing. On January 15th, after a hearing at which both parties were represented by counsel, it was ordered that the action be dismissed. The judgment of dismissal was appealable. (Southern Pacific R. R. Co. v. Willett, 216 Cal. 387 [14 P.2d 526]; Neustadt v. Skernswell, 99 Cal.App.2d 293 [221 P.2d 694]; Code Civ. Proc., § 581(d).) Instead of appealing, however, plaintiffs filed a notice of motion to vacate the judgment. On March 8, 1948, the trial court granted the motion to vacate. No appeal was taken from the order vacating the judgment of dismissal. Petitioner contends that the order was in excess of jurisdiction and seeks a writ of prohibition to prevent the trial of the action. It is now settled that the order was appealable whether or not it was void (Phelan v. Superior Court, 35 Cal.2d 363 [217 P.2d 951]), but it was uncertain at the time the order was entered whether petitioner had a remedy by appeal. Petitioner is therefore permitted to challenge the jurisdiction of the court in this proceeding. (Phelan v. Superior Court, supra.)
Section 473 of the Code of Civil Procedure specifies the grounds upon which the trial court may relieve a party from a previously entered judgment or order. “The court may, upon such terms as may be just, relieve a party or his legal representative from a judgment, order, or other proceeding taken against him through his mistake, inadvertence, surprise or excusable neglect. Application for such relief must be accompanied by a copy of the answer or other pleading proposed to be filed therein, otherwise the application shall not be granted, and must be made within a reasonable time, in no case exceeding six months, after such judgment, order or proceeding was taken.
[192]“The court may, upon motion of the injured party, or its own motion, correct clerical mistakes in its judgment or orders as entered, so as to conform to the judgment or order directed, and may, on motion of either party after notice to the other party, set aside any void judgment or order.”
In addition to its powers under section 473, the trial court may correct an inadvertent mistake within a reasonable time after entry of the judgment or order. “If the judgment was entered . . . through the inadvertence or improvidence of the trial court, it had the power independent of statute, to correct the mistake by amending or setting aside the judgment, [citations], as this presents no question of judicial review upon the merits. However, judicial error which occurs in the rendition of orders or judgments which are the fault of an exercise of judicial discretion may not be corrected except by statutory procedure. (Stevens v. Superior Court, 7 Cal.2d 110 [59 P.2d 988].) ” (Phillips v. Trusheim, 25 Cal. 2d 913, 916 [156 P.2d 25].)
The basic question in this case, therefore, is whether the order vacating the judgment of dismissal was authorized under section 473 or on the ground of judicial inadvertence. Neither the motion nor the order of vacation was based on any ground mentioned in section 473. " This case is not one in which a judgment was taken against a party “through his mistake, inadvertence, surprise or excusable neglect,” or in which there were “clerical mistakes,” or in which there was a void order that could be set aside under the last paragraph of the section.
Nor does it appear that the court was deceived or that it acted under any mistake as to the state of the record. The judgment of dismissal was entered after a contested hearing at which counsel for both parties were present. If plaintiffs were not at fault in failing to bring the action to trial, it was their duty to present evidence to show the facts. If they failed to do so, or if the court failed to give due weight to their evidence, they cannot claim that the court acted inadvertently. Plaintiffs’ sole contention in their motion to vacate and supporting affidavit was that the court failed to take into account the crowded trial calendar and the consequent impossibility of bringing the action to trial sooner. The crowded calendar, however, was clearly within the knowledge of both the court and counsel. There is no claim that the first order was not the one intended by the court or that it was made irregularly. The court changed its earlier ruling because it [193]had failed to give due weight to the crowded trial calendar, a matter clearly before it when it made its first ruling. That failure was judicial error not subject to correction on a motion to vacate.
It is suggested that the failure of a trial court to specify the grounds upon which it vacated an earlier order prevents this court from affirming the later order. (Treat v. Superior Court, 7 Cal.2d 636, 641 [62 P.2d 147].) We have recently reiterated, however, that an order attacked collaterally, as here by prohibition, may be supported by a presumption of facts consistent with its validity. (Phelan v. Superior Court, 35 Cal.2d 363, 372 [217 P.2d 951]; Wells Fargo & Co. v. San Francisco, 25 Cal.2d 37, 40 [152 P.2d 625].) It cannot reasonably be contended, however, that this presumption will prevail over contrary statements in the record. [Phelan v. Superior Court, supra, at 373-374.] The record in this case shows beyond the protective reach of any presumption of validity that the order of March 8, 1948, was an attempt to reexamine the issues decided on January 15, 1948. The order of dismissal of that date was made because it appeared to the trial court after a proper hearing that “the delay in bringing said action to trial has been inexcusable and has not been caused by the defendant Key System, Inc., . . . that the rights of the defendant . . . have been greatly prejudiced • . Plaintiffs’ sole ground for the motion to vacate was that the original order was an abuse of discretion resulting in injustice. The motion was supported by an affidavit explaining plaintiffs’ failure to prosecute the action. The affidavit relied upon the crowded trial calendar and emphasized that the trial court had discretion to deny the motion to dismiss. Nothing was brought before the trial court in the notice of motion to vacate or the supporting affidavit that would justify an order under section 473, so that it can only be inferred that the trial court was asked to reverse its earlier order because of judicial error in that ruling, namely, failure to give due weight to the congested trial calendar.
The order itself sets forth the grounds therefor and negatives the presumption that it was based on grounds specified by section 473 or other proper grounds. It recites: “It Now Appearing to the Court upon further consideration and a more complete presentation of the facts that there was no unnecessary delay on the part of plaintiffs in bringing this [194]action to trial or any delay on the part of plaintiffs that was inexcusable, and the Court being further of the opinion that to dismiss said action without any hearing on the merits would work an injustice upon plaintiffs through no fault of their own; and It Further Appearing to the Court after full consideration of the facts and personal knowledge of the Court of the time required to bring such an action to trial in this County that the rights of the defendant have not been prejudiced through any fault of the plaintiffs in this action.” Thus, the trial court did not rely upon “ [a party’s] mistake, inadvertence, surprise or excusable neglect,” or mention that the order was a “clerical mistake” or that it was void or that it was entered by inadvertence. The court speaks of “further consideration” and “a more complete presentation of the facts,” “full consideration of the facts” and “personal knowledge of the Court of the time required to bring such an action to trial.” Yet the crowded condition of the trial calendar must have been within the “personal knowledge of the Court” on January 15th, when the order of dismissal was granted. In the light of the grounds urged in the notice of motion to vacate and the supporting affidavit, the quoted language of the order compels the conclusion that the court granted the motion to rectify an earlier decision, made after a full hearing and argument, but later deemed erroneous because of the court’s failure to give due weight to the crowded trial calendar. It cannot be presumed, therefore, that the court was acting under section 473 or on the ground of judicial inadvertence. If the presumption is controlling in this case, where the grounds on which the order was based are so clear, it will preclude collateral attack on virtually any order vacating a judgment.
It is nevertheless suggested that the “policy requiring finality of judgments and orders,” which generally controls when a judgment or order is entered after a trial on the merits, “has not been deemed controlling where the judgment or order set aside was in the exercise of a discretionary power not based on the merits of the action. The required policy in such cases is that which requires a trial on the merits wherever possible.” It is true that there is a policy favoring disposition of cases on their merits. That policy finds expression in the provisions of the Code of Civil Procedure, section 473, which grants relief within a prescribed time limit to parties defeated by their “mistake, inadvertence, [195]surprise or excusable neglect.” (Bowman v. Bowman, 29 Cal.2d 808, 813 [178 P.2d 751, 170 A.L.R. 246].)
It does not follow, however, that ‘‘in giving effect to that policy appellate courts have generally refrained from interfering on jurisdictional grounds with the trial court’s reconsideration of a discretionary order not based on the merits of the litigation.” In Phillips v. Trusheim, 25 Cal.2d 913 [156 P.2d 25], Wells Fargo & Co. v. San Francisco, 25 Cal. 2d 37 [152 P.2d 625], and Bowman v. Bowman, 29 Cal.2d 808 [178 P.2d 751, 170 A.L.R. 246], this court did not hesitate to interfere with the trial court’s reconsideration of discretionary orders not based on the merits of the litigation. (See, also, Barlow v. City Council of Inglewood, 32 Cal.2d 688 [197 P.2d 721] (error for trial court to vacate judgment on demurrer based on statute of limitations).) Heretofore, there has been no attempt to distinguish the correction of judicial error in orders not based on the merits of the litigation from the correction of judicial error in other types of judgments or orders. Such a distinction would have the undesirable effect of creating classes of appealable judgments—some of indeterminate finality, which the trial court has power to vacate at its whim outside the statutory procedure, and some that it cannot vacate after entry of judgment, except as provided by statute.
The trial court has no power to correct judicial error in a final judgment or an appealable special order after final judgment except as provided by statute. (Coombs v. Hibberd, 43 Cal. 452; Lang v. Superior Court, 71 Cal. 491 [12 P. 306, 416]; Carpenter v. Superior Court, 75 Cal. 596 [19 P. 174]; Holtum v. Grief, 144 Cal. 521 [78 P. 11]; Drinkhouse v. Van Ness, 202 Cal. 359 [260 P. 869]; Lankton v. Superior Court, 5 Cal.2d 694 [55 P.2d 1170] [Disapproved on another issue in Phelan v. Superior Court, 35 Cal.2d 363 [217 P.2d 951]; Stevens v. Superior Court, 7 Cal.2d 110 [59 P.2d 988]; Phillips v. Trusheim, 25 Cal.2d 913 [156 P.2d 25]; Wells Fargo & Co. v. San Francisco, 25 Cal.2d 37 [152 P.2d 625]; Bowman v. Bowman, 29 Cal.2d 808 [178 P.2d 751, 170 A.L.R. 246]; Barlow v. City Council of Inglewood, 32 Cal.2d 688 [ 197 P.2d 721]; of. Belser v. Hoffschneider, 104 Cal. 455 [38 P. 312]; see Estate of Burnett, 11 Cal.2d 259, 262 [79 P.2d 89]; Bastajian v. Brown, 19 Cal.2d 209, 214 [120 P. 2d 9]; 30 Cal.L.Rev. 75.) Even if the trial court acted hastily and ill-advisedly in making its first order, it is not for this [196]court to disregard settled rules of procedure and practice. Such disregard can result only in confusion. As this court said in one of its earliest cases on this subject, “There must be some point where litigation in the lower Court terminates, and the losing party is turned over to the appellate Court for redress.’’ (Coombs v. Hibberd, 43 Cal. 452, 454.)
The writ should issue as prayed.
Edmonds, J., and Spence, J., concurred.
Petitioner’s application for a rehearing was denied November 16, 1950. Edmonds, J,, Traynor, J., and Spence, J., voted for a rehearing.