Bracey v. Gray

California Court of Appeal Oct 13, 1945 No. Civ. 7171Published

Before: Thompson

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Holding. A trial court lacks jurisdiction to vacate a judgment while an appeal is pending, and an appellate decision is not void due to a disqualified justice's presence if that justice did not participate in the decision or the court's quorum.

Issues

Does a trial court have jurisdiction to annul a judgment while an appeal is pending?
Is an appellate decision void if a disqualified justice is present on the bench but does not participate in the decision?
Does the presence of a disqualified justice violate due process if the court remains legally constituted by two qualified justices?

Disposition. affirmed

Quotations verified verbatim against the opinion

“After an appeal from a judgment has been perfected, the trial court no longer has control over the action with respect to the matters embraced therein”

“The term “sit and act” as it is used in section 170a, supra, has been uniformly construed to mean that such disqualified justice shall not preside or participate in the hearing, trial or determination of the appeal”

“The tribunal is not illegally constituted as a court merely because one of its members is disqualified from participating in a particular case.”

THOMPSON, J.

The defendants have appealed from an order of the Superior Court of Butte County denying their motion to vacate and annul judgments entered against them in the above-entitled action on January 17, 1939, and on May 1, 1939, in a suit for possession of real property. The judgments were affirmed on appeal by this court.

(Bracey

Gray,

49 Cal.App.2d 274 [121 P.2d 770].) It is contended the decision of the appellate court is void because one of the members thereof was disqualified, under section 170a of the Code of Civil Procedure, from sitting as a member of that tribunal in reviewing the case on appeal. The appellants appeared in proper person to represent the defendants and appellants.

In 1928 the land in question was conveyed by the owner, Alice Anderson, to the defendant Dora Stuart, then unmarried, subject to a deed of trust executed to secure a debt of $2,250. Dora Stuart subsequently married the defendant John Gray, and thereafter filed a homestead on the property. The land was sold to the State Mutual Building and Loan Association, under the provisions of the trust deed, for default of payments. July 5, 1935, the State Mutual Building and Loan Association sold and conveyed the land to the plaintiffs Arthur and Adelaide Bracey. The plaintiffs then brought suit against Mr. and Mrs. Gray, in Butte County, for possession of the property. Judge Warren Steel of Tuba County tried that case and rendered judgment against the defendants. During the trial in the superior court, John Gray executed a quitclaim deed to the plaintiffs, and, with his consent, the cause was dismissed as to him. Judgment

[208]

was erroneously entered January 17, 1939, against both defendants. On motion, a new trial was granted as to the defendant Dora Stuart Gray. On retrial, judgment was rendered against her May 1, 1939. From that judgment both defendants appealed. This court affirmed that judgment January 23, 1942. Judge Steel was then sitting in this court for the hearing of the calendar during which the said appeal was argued and submitted, but he did not participate therein. The minutes of this court show that

Bracey v. Gray

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THOMPSON, J.

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