Carpenter v. Golden State Securities Co.

CRAIL, P. J.

This is an appeal from a purported judgment and purported orders made after the entry of the judgment, and the case comes before us on the motion of the respondent to dismiss the appeal upon the ground that no appeal lies from a mere memorandum of the clerk which on its face indicates that formal judgment or order is to be thereafter entered.

Judgment was entered on July 26, 1938. Thereafter plaintiff and defendant filed motions for a new trial, and plaintiff filed a motion to vacate and set aside the judgment theretofore entered. Said motions came on for hearing, were argued and submitted, and on September 27, 1938, the clerk made the following memorandum on the clerk’s desk calendar: “Motion of plaintiff to vacate and set aside judgment and enter another and different Judgment submitted August 17, 1938, is now granted. Judgment is now ordered for the plaintiff and against the defendant in the sum of $6,995.44, with interest thereon at 7% from July 30, 1937, to date, attorney fees in the sum of $311.23 and costs. Plaintiff’s motion for a new trial submitted August 17, 1938 is now denied, except as hereinbefore provided. Defendant’s motion for a new trial submitted August 17, 1938 is now denied. ’ ’

It will be observed from a mere reading of the memorandum that it is neither a judgment nor an order.' Instead of rendering judgment, the memorandum says, “Judgment is now

ordered.”

It also contains an order for attorney fees, but it does not state in whose favor the judgment for attorney fees is to be rendered.

In the case of

Neblett

v.

Neblett,

13 Cal. App. (2d) 304 [56 Pac. (2d) 969], this court reviewed numerous cases where

[496]

such a question has arisen: “It has been held in a number of cases that a minute order may serve only as a memorandum for the entry of final judgment. In

Ferris