Casner v. Superior Court

California Court of Appeal Dec 8, 1937 No. Civ. 10624Published

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Holding. The court held that a writ of review is unavailable when the challenged orders or judgments are appealable under the Code of Civil Procedure. Because the orders vacating the dismissal and entering new judgments were appealable, the court lacked jurisdiction to grant the writ.

Issues

Whether the trial court exceeded its jurisdiction in vacating a prior judgment of dismissal and entering new judgments.
Whether a writ of review is available to challenge orders that are otherwise appealable under the Code of Civil Procedure.

Disposition. Writ discharged

Quotations verified verbatim against the opinion

“The order of the court vacating the judgment of dismissal was a special order made after final judgment, as were also the respective orders for judgment in defendants’ favor, and, as such, were appealable”

“Where the law allows an appeal from an order or judgment, even when the tribunal making such order or rendering-such judgment exceeded its authority in so doing, a writ of review may not be granted.”

[731]

THE COURT.

This is a petition for a writ of review, praying that an order and a judgment of the respondent court be annulled.

It appears from the petition and a return made thereto that on and prior to April 7, 1937, there was pending in said superior court an action for the recovery of damages brought by the petitioner herein against Daily News Company Ltd., William Cohn, Market Street Railway Company and John Bartlett. On said date the evidence had been closed, and those of the defendants who had appeared and answered moved the court for a directed verdict in their favor. The jury was excused until 2 P. M. of said day and the parties argued the motion. It appears that this argument or the concluding part of it took place in the chambers of the judge shortly before the reconvening of the court in the regular courtroom, but participating in the proceedings were the clerk of the court and the official reporter. When the argument and discussion were ended the court announced that the motion for a directed verdict would be granted in favor of all defendants. The judge, officials and attorneys then repaired to the courtroom, where the proceeding was resumed in the presence of the jury. At this point the record sIioavs as follows:

“MR. BARNETT (Plaintiff’s attorney:) Tour honor, at this time I want to make a motion in behalf of the plaintiff. . . . We desire to dismiss the case as against all defendants Avithout prejudice. . . .

“MR. APPEL (Attorney for defendant Market Street Railway Company:) Tour honor has made an order here already I think.

“THE COURT. If the record shows such an order was made I will set it aside. Let the record show that if any order was made in chambers about an instructed verdict it is set aside . . . and the motion to dismiss as to all defendants is granted . . . without prejudice.”

An exception to this ruling was noted and the jury was thereupon discharged. On the same day a judgment of dismissal without prejudice was entered.

On April 27th the defendants Market Street Railway Company and John Bartlett moved the court to set aside said order and judgment of dismissal, and to enter judgment in

Casner v. Superior Court

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THE COURT.

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