Tuck v. Tuck

McMURRAY, J. pro tem.

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Plaintiff filed a complaint for dissolution of a partnership and for accounting. After the defendant had answered, generally denying plaintiff’s allegations, the matter was heard by the court sitting without a jury. On January 17, 1964, the trial court ruled in favor of the plaintiff and on January 22, 1964, filed a memorandum re decision. Findings of fact and conclusions of law were filed; judgment was filed and entered; and, plaintiff filed and mailed to defendant’s counsel a notice of entry of judgment all on February 21, 1964. On March 4, 1964, defendant filed a notice of motion to vacate and set aside the judgment and to grant a new trial. On May 1, 1964, after a hearing, an order was entered denying the motion for a new trial, but vacating and changing the findings and judgment entered on February 21, pursuant to Code of Civil Procedure section 662. Plaintiff’s attorney was ordered to file amended findings and a modified judgment which, when signed and filed, would supersede the previous judgment. On September 17, 1964, plaintiff not having filed the above amended findings and modified judgment, the court gave notice that failure to do so before September 29, 1964, would require the court to do so. On October 19, 1964, plaintiff moved to set aside the order of May 1, 1964, modifying and amending the February 21 judgment. On November 4, 1964, defendant filed a notice of motion under Code of Civil Procedure section 473 to correct the February judgment. On December 31, 1964, the court denied the plain

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tiff’s motion to vacate the May 1 order directing the amended findings and judgment under Code of Civil Procedure section 662; prepared amended findings of fact and conclusions of law; and entered an amended judgment for plaintiff. Defendant on January 27, 1965, having substituted new counsel, filed a notice of appeal from the amended judgment of December 31,1964. On February 1,1965, plaintiff filed a notice of appeal from the amended judgment entered on December 31, 1964, and from the court’s order denying his motion to vacate the order directing amended findings and judgment. Both parties having appealed, they will be referred to as plaintiff and defendant throughout this opinion.

The main questions here presented are whether or not the trial court had jurisdiction to entertain the motion for a new trial and whether or not the court exercised its power within the time required. Plaintiff argues that the trial court lost jurisdiction to grant a modification under Code of Civil Procedure section 662 on either of two grounds: first, that the notice of motion was late and, second, that the court failed to act within the statutory time. The plaintiff also asserts that the December 31, 1964, judgment is void and that the court should have granted his motion to vacate the May 1, 1964, order modifying the original judgment.