Fong Chuck v. Chin Po Foon

[553]

SPENCE, J.

Plaintiff appeals from a judgment for defendants and from two orders made thereafter: one correcting a clerical error with regard to the entry of said judgment and the other refusing to vacate said judgment. The action, which was for specific performance of an alleged agreement for the sale of real property, was tried by the court without a jury. Inasmuch as certain procedural considerations affecting the jurisdiction of the court in its. disposition of this case are determinative of the propriety of plaintiff’s appeal, the record on its merits will not be reviewed and only the following table of dates need be noted:

May 25, 1944—judgment ordered for plaintiff and his counsel instructed to prepare findings of fact and conclusions of law.

June 13, 1944—on hearing, findings settled and their redraft ordered in accordance with rulings then made.

June 15, 1944—notice of intention to move for a new trial served and filed.

June 16, 1944—findings of fact and conclusions of law actually signed and filed, and judgment entered, decreeing specific performance as sought by plaintiff.

June 19, 1944—written notice of entry of judgment served and filed.

June 23,1944—motion for a new trial argued and submitted for decision.

August 15, 1944—order filed setting aside the findings and judgment for plaintiff, and directing judgment for defendants upon reopening of the ease. (Code Civ. Proc., see. 662.)

■ September 15, 1944—judgment for defendants signed and filed.

October 24, 1944—two orders made: one denying plaintiff’s motion to strike the order of August 15, 1944; and the other correcting the minutes to show that the order which was apparently entered on August 15 was in fact entered August 14, 1944.

Plaintiff contends that the notice of intention to move for a new trial, served and filed prior to the signing of the findings of fact and conclusions of law, was premature; that in the absence of a timely notice, the trial court never acquired jurisdiction to pass upon the motion and therefore all proceedings based thereon are void. Plaintiff’s position must be sustained. A substantially similar situation was presented in