McBride v. Alpha Realty Corp.

Opinion

ELKINGTON, J.

Plaintiff Thomas D. McBride brought an action in Santa Clara County for a real estate brokerage commission against defendant Alpha Realty Corporation. The defendant cross-complained against cross-defendant Hotel Circle, Inc. The plaintiff and cross-defendant were represented in the action by the same attorney.

Following a trial, the court made and filed its memorandum of decision ruling adversely to the plaintiff and to the cross-defendant. A copy of that memorandum was mailed in Santa Clara County by the clerk on January 28, 1974, to their counsel whose offices sre in San Diego, California.

[928]

On February 11, 1974, the clerk filed plaintiflf’s and cross-defendant’s “Request for Findings of Fact and Conclusions of Law” which was dated February 7, 1974. On February 25, 1974, a judgment, reciting that “findings of fact and conclusions of law not having been requested by any of the parties,” was entered. The judgment gave effect to the earlier memorandum of decision.

Thereafter plaintiff and cross-defendant, contending that the judgment was void for lack of findings of fact, moved to vacate it. The motion was denied. The instant appeal is taken by them from the judgment, and from a nonappealable order denying their motion to vacate the judgment.

It is of course true that a “judgment entered without findings where findings are required is a nullity . . . .”

(Ohio Cas. Ins. Co.

v.

Northwestern Mut. Ins. Co.,

17 Cal.App.3d 204, 207 [94 Cal.Rptr. 586]; and see Code Civ. Proc., § 632, subd. 1.)

Rule 232(b) of the California Rules of Court provides that findings of fact are required in a superior court action tried, as here, to the court, where written request therefor is “served and filed within 10 days” after mailing of the “announcement of intended decision.”

1

Code of Civil Procedure section 1013 (as in effect at the time here at issue) provided that in case of service by mail, “if, within a given number of days after such service, a right may be exercised, or an act is to be done by the adverse party, the time within which such right may be exercised or act be done, is extended two days, together with one day additional for every full 100 miles distance between the place of deposit and the place of address,...”