Lacey v. Bertone

BRAY, J.

Appeals from two orders of the superior court, one denying plaintiff a new trial but reopening the case for further proceedings and amending certain findings and portions of the interlocutory judgment; the other, denying defendant’s motion to correct the first order.

Question Presented

Fundamentally the question is whether under the circumstances of this case, after an interlocutory judgment is entered, a judge to whom the case is referred for an accounting, but who did not try the case originally, may change or modify the prior findings and decree.

Record

The action was one for specific performance of an agreement for the sale of real property. It was originally tried before Honorable Pat R. Parker, who made findings of fact and conclusions of law and rendered an interlocutory decree to the effect that plaintiff was not entitled to specific performance, but that defendant recover judgment on his cross-complaint cancelling said agreement and restoring possession to plaintiff of certain real and personal property, including certain moneys. The decree then provided that plaintiff account to defendant for certain sums; “that in the event said E. V. Lacey fails to render such account, or in the event that the Court finds such account unsatisfactory, incomplete or otherwise objectionable, the Court will fix a time and place for a hearing to be held before the above entitled Court upon such notice as the Court may designate and fix, to determine the amount due said S. Bertone from said E. V. Lacey pursuant to the terms of the contract of August 1, 1945, to the date of this decree.” From this decree plaintiff appealed. On that appeal,

Lacey

v.

Bertone,

33 Cal.2d 649 [203 P.2d 755], the

[109]

Supreme Court held that the appeal was premature because the judgment was merely interlocutory, and left undetermined certain items as to which an accounting was required. The cause was remanded for determination of these items. In the meantime Judge Parker died. The further hearing was before Honorable Preston Devine. After taking evidence, Judge Devine made his findings of fact, conclusions of law and final judgment and decree. Plaintiff thereupon moved for a new trial. It is the order made upon this motion from which the first appeal is taken. Defendant moved “to Correct Minute Order Denying Motion for New Trial or to Enter Previous Judgment as Final.” The second appeal is from the order denying this motion. Defendant, contending that the order made on motion for new trial should be corrected to read simply “Motion for new trial denied,” attacks all of said order except the portion denying the new trial. The two appeals will be considered together, for, if the first order was valid, the second order refusing to change it was likewise valid. On the other hand, if the first order was invalid, then the court should have granted plaintiff’s motion to enter the previous judgment as final.