Vitimin Milling Corp. v. Superior Court

SHENK, J.

Prohibition. From January 12 to 18, 1933, an action entitled

“J. J. Schumacher

v.

E. M. Allison, Vitimin Milling Corporation, et al.,

No. 331685”, was on trial with a jury in department eleven of the Superior Court in and for Los Angeles County. On January 18th, when both sides had rested, a motion for a directed verdict was made on behalf of the defendant Vitimin Milling Corporation, petitioner herein. The motion was granted. A similar motion was made on behalf of other defendants and denied. As to the petitioner the following minute order was entered: “Motion of defendant, Vitimin Corporation, a corporation, for an instructed verdict is granted ...” The jury was instructed and retired for deliberation at 4:17 P. M. on January 18th. At 9:45 P. M. of the same day the jury returned to the court and reported inability to agree upon a verdict, whereupon, by stipulation, an order was entered in the minutes that “it appearing to all concerned the jury is unable to reach a verdict, the jurors are discharged from the case and a mistrial is ordered”. Thereafter on January 20th the judge of department eleven signed and filed an order “that the motion for a directed verdict, made by counsel in behalf of the defendant Vitimin Mining Corporation, be granted”. The cause was set down for retrial as to all defendants in department sixteen and came on regularly for trial in that department on May 3, 1933, before the respondent judge. During the trial then in progress and on May 4th the judge of department eleven signed and filed a purported judgment reciting the fact that an order had been made in said action granting a motion for a directed verdict as to the petitioner and wherein it

[119]

was “ordered, adjudged and decreed that the defendant, Vitimin Milling Corporation, do have judgment from plaintiff”. Thereafter on the same day in department sixteen counsel for the petitioner objected to the introduction of any further evidence as to the petitioner on the ground that the principles of

res judicata

barred any further proceeding in the matter. Whereupon counsel for the plaintiff moved the court to set aside said judgment of May 4th, on the ground that the same was void on the face of the record, in that it appeared of record that no verdict had been returned or entered in favor of the petitioner at the former trial or at all; that the trial as to the petitioner had not been completed, and that the order of January 18th, directing a mistrial, was general and applied to all the defendants. The objection to the further introduction of evidence as to the petitioner was overruled and the motion to set aside the judgment of May 4th was granted. The further trial of the action was then continued to May 22d. Pending such further trial and on May 10, 1933, the judge of department eleven signed and filed an order purporting to change and correct