Wells v. Coca Cola Bottling Co.

California Court of Appeal Mar 23, 1956 No. Civ. 4971Published

Before: Barnard

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Holding. The court held that the trial court did not err in considering the case submitted after a long delay despite the lack of filed briefs, and that it properly exercised its inherent power to enter a nunc pro tunc judgment to prevent injustice following the plaintiff's death.

Issues

Whether the trial court erred in deciding the case without the filing of briefs after an initial order for submission on briefs.
Whether the trial court had the authority to enter findings and judgment nunc pro tunc after the death of the original plaintiff.

Disposition. affirmed

Quotations verified verbatim against the opinion

“a nunc pro tunc order should be granted or refused as justice may require in view of the circumstances of the particular case.”

“The delay in signing the findings and entering judgment is the controlling factor in determining whether the nunc pro tunc principle should be applied.”

“This action had been fully tried, the court had announced its decision, and findings had actually been prepared and submitted before the death of the original plaintiff.”

BARNARD, P. J.

This is an action for damages for personal injuries to the original plaintiff alleged to have been caused by drinking a bottle of Coca Cola containing pieces of glass. The Coca Cola Bottling Company of Fresno and the owners of a grocery store where the bottle of Coca Cola was purchased were named as defendants in the action.

The action was tried before Judge Moran sitting without a jury on March 4,1953. After both sides had rested the judge suggested he would like to have briefs filed. Both sides agreed and the judge said “Very well. It will be ordered that the ease be submitted on briefs, 15, 15, 5.” The preceding discussion indicates that the parties understood that the plaintiff was to file the first brief. No briefs were ever filed and on December 4, 1953, the court signed a memorandum indicating its decision against the Coca Cola Bottling Company, but in favor of its codefendants, and ordering the plaintiff to prepare findings of fact and conclusions of law.

The plaintiff’s counsel presented proposed findings of fact and conclusions of law to the court on February 24, 1954. The plaintiff died on February 28, 1954. The findings of fact and conclusions of law were signed by the court and filed on

[220]

March 2, 1954. A judgment awarding the plaintiff $3,000 as against the Coca Cola Company was signed and filed on March 8,1954. Thereafter, plaintiff’s counsel learned that the plaintiff had died in Arizona on February 28. Judge Moran was retired for disability on March 26, 1954.

The Coca Cola Company filed a motion

set aside the judgment, and a notice of intention to move for a new trial; the plaintiff’s wife, as administratrix, was substituted as plaintiff in the action; and plaintiff’s counsel filed notice of a motion for an order amending the findings and judgment by changing the date thereof to February 26, 1954, and for an order that they be filed

nunc pro tunc

as of February 26. All of these motions were heard by Judge Meyers who entered a minute order on August 26, 1954, denying the motion to set aside the judgment, denying the motion for a new trial, and ordering that the findings of fact, conclusions of law, and judgment be amended by changing the date thereof to February 26, 1954, and that they all be filed

Wells v. Coca Cola Bottling Co.

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BARNARD, P. J.

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