Heinfelt v. Arth

California Court of Appeal Feb 4, 1935 No. Civ. 1532Published

Before: Barnard

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Holding. An unqualified reversal on appeal remands a cause for a new trial, placing the parties in the same position as if the case had never been tried. The trial court erred by entering judgment for the plaintiffs without a new trial or the introduction of evidence.

Issues

Whether an unqualified reversal on appeal requires a new trial.
Whether the trial court erred in entering judgment for the plaintiffs without a new trial or the introduction of evidence.

Disposition. reversed and remanded

Quotations verified verbatim against the opinion

“it is thoroughly settled in this state that an unqualified reversal on appeal has the effect of remanding a cause for a new trial and places the parties in the same position as if the case had never been tried.”

“We think the denial of a new trial to the appellant was not a mere technical error, but was one which substantially affected his rights.”

BARNARD, P. J.

This action was brought to collect a real estate commission from the defendant. The action was tried in April, 1932, with further hearings in May and September of that year. The court’s only finding was to the effect that the National Realty Company, a' copartnership, was not a licensed real estate broker at the time the alleged cause of action arose. A judgment for the defendant was entered which was reversed on appeal.

(Heinfelt

Arth,

135 Cal. App. 445 [27 Pac. (2d) 420].)

Thereafter, the plaintiffs gave notice that they would, on February 19, 1934, move the court to make and enter findings of fact and conclusions of law in accordance with the prayer of the complaint and would move for judgment in their favor upon the ground that “under the evidence and the conclusions and findings of this Court in said action and the decision of the District Court of Appeal of the State of California, in and for the Fourth Appellate District, made and entered in the above-entitled matter on the appeal thereof to said Court, plaintiffs are entitled to judgment as prayed for”. On March 30, 1934, findings of fact and conclusions of law were filed, in which it was found that all of the allegations of the complaint are true and all of the denials set out in the answer are untrue. On the same day a judgment was entered in favor of the plaintiffs, reciting that the plaintiffs had moved the court that findings of fact be made and entered in their favor as prayed for in the complaint, that the court had made and entered findings of fact and conclusions of law, and that judgment had been ordered in favor of the plaintiffs. From this judgment the defendant has appealed.

The appellant contends that the previous order of reversal entitled him to a new trial and that the court erred in mak

[383]

ing findings and entering judgment without a further hearing on the issues. It would appear from the record that on the hearing of the motion for findings and judgment it was not stipulated that the transcript of the proceedings on the former trial be used and no other evidence was received.

Heinfelt v. Arth

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BARNARD, P. J.

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