Charlton v. Pan American World Airways, Inc.

WOOD (Fred B.), J.

The defendant has appealed from a money judgment covering an unpaid expense allowance of the plaintiff while on a temporary foreign assignment in defendant’s employ.

In support of its appeal defendant claims (1) that the trial court should have granted its motion to dismiss the action for the-failure of the plaintiff’s counsel to submit proposed findings of fact and conclusions of law within 10 days after announcement of decision, as required by rule 19 of the Rules for Superior Courts, and (2) that interest should run only

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from the entry of judgment, not from June 1, 1948, as provided in the judgment.

(1)

In respect to noncompUcmce with rule 19,

it appears that a minute entry was made June 28, 1950, ordering that judgment be granted in favor of the plaintiff for $1,158.55 plus interest from June 1, 1948, at 7 per cent per annum. January 15, 1952, plaintiff’s counsel served proposed findings of fact and conclusions of law upon the, defendant. January 17,1952, defendant filed notice of motion to strike the proposed findings and conclusions, and to dismiss the action, motions which were heard and denied January 28, 1952. Meanwhile, on January 23d, the court signed and filed the findings of fact and conclusions of law. Written judgment, signed by the judge and dated January 28th, was filed January 31, 1952.

Defendant’s theory is that rule 19 imposed a duty upon the “prevailing party” to prepare and submit the documents within the time limited, a duty which cannot later be performed unless the time be extended pursuant to section 1054 or leave be granted pursuant to section 473 of the Code of Civil Procedure.

Under that theory, defendant insists, its motion to dismiss should have been granted and thereupon it would have been proper for plaintiff to apply, under section 473, for relief from his default and for permission to submit proposed findings of fact and conclusions of law.

No such consequence is expressed in rule 19. It simply declares that when written findings of fact and conclusions of law are required “counsel for the prevailing party shall, within ten (10) days after announcement of decision, unless otherwise ordered, prepare, serve and submit to the court proposed written findings of fact and conclusions of law together with the proposed judgment or decree.” There is not therein expressed, nor can we read into it, an intent to penalize the prevailing party for his delay, nor to suspend or terminate the court’s jurisdiction over the cause, nor the court’s duty to render its decision and decree by making and filing written findings of fact, conclusions of law, and judgment. Significantly, too, the rule says “unless otherwise ordered.” Here, in effect, the trial court did “otherwise order” by signing and filing the findings and denying the motion to dismiss.