O'CONNOR v. Skelton

California Court of Appeal Sep 14, 1961 No. Civ. 6499Published

Before: Griffin

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Holding. The court held that an amended judgment which materially departs from the original judgment, entered pursuant to a motion for a new trial, constitutes a new judgment from which an appeal may be taken.

Issues

Whether an amended judgment that materially changes the original judgment constitutes a new, appealable judgment.
Whether the trial court's modification of the judgment was a clerical correction or a judicial act creating a new judgment.

Disposition. Motion to dismiss appeal denied.

Quotations verified verbatim against the opinion

“The rule is established that where an amended judgment is entered after proceedings on a motion for a new trial and pursuant to the provisions of section 662 of the Code of Civil Procedure, which second judgment is a material departure from the first one entered, an appeal lies solely from the second judgment”

“the error here referred to was not a clerical error but involves a change which materially affects the judgment and the rights of the parties against whom it is rendered and involves the exercise of judicial discretion amounting to a new judgment.”

GRIFFIN, P. J.

Plaintiffs and appellants brought this action against defendants and respondents for dissolution of a joint venture or partnership and sought partition of real property, for an accounting and money judgment based thereon.

After trial, apparently no separate findings were made and signed. The court entered judgment on August 18, 1960, stating that the court does make, find and declare the parties to be joint possessors of an undivided one-half interest in a hotel. The property was subject to a trust deed with a balance due thereon of $5,159.30. Trustees were appointed to receive

[613]

the rents. An accounting was had and, among other things, the court found in the judgment that plaintiffs owed defendants $1,300 and a further sum of $3,984.21, totaling $5,284.21 as a result of the accounting of rents, etc. The judgment likewise stated that the real property could not be partitioned in kind and ordered it sold and appointed a referee to conduct the sale and divide the proceeds as their interests appeared (i.e., an undivided one-half interest therein) after payment from plaintiffs ’ share of the proceeds of the sum of the balance due on the trust deed. The referee was to be named by the court by amendment to the judgment, with authority to sell at public auction and report to the court upon confirmation of the sale and to execute a deed thereto. Certain costs were designated to be paid. It then stated that:

“. . . this judgment is in the nature of an interlocutory judgment in that the Court reserves to itself jurisdiction to supplement or add to the same such further provisions as may be necessary to effect the sale of said property in partition.”

On August 30, 1960, plaintiffs gave notice that they intended to move to vacate and set aside the judgment and seek relief under Code of Civil Procedure, sections 657 and 663, and to grant a new trial on certain stated grounds including insufficiency of the evidence to justify the judgment and by reason of the fact that in the accounting and computation of the amounts to be charged against plaintiffs, sums of money in excess of $5,000 to which plaintiffs were entitled and which were overlooked or not considered as proper credits.

On the motion for a new trial and motion, under Code of Civil Procedure, section 663,

O'CONNOR v. Skelton

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GRIFFIN, P. J.

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