People v. Brattingham

California Court of Appeal May 2, 1928 No. Docket No. 1584.Published

Before: Craig

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Holding. An order denying a motion to modify a judgment is not appealable when the motion merely seeks to relitigate issues that could have been raised on an appeal from the original judgment.

Issues

Whether an order denying a motion to modify a judgment is appealable when the underlying issue could have been raised on appeal from the judgment itself.

Disposition. dismissed

Quotations verified verbatim against the opinion

“the rule is well established that an order made after judgment is not appealable where the motion merely asks the court to repeat or overrule the former ruling on the same facts.”

“to consider the appeal from the order refusing to modify the judgment would have the effect of allowing the right to two appeals.”

CRAIG, J.

This is an appeal from an order denying a motion of the defendant for modification of the judgment heretofore made and entered. The judgment in question is one after verdict of guilty of the charge contained in the information accusing the defendant of a violation of section 141 of the California Motor Vehicle Act (Stats. 1923, p. 562). The judgment was:

[528]

“ ... It is therefore ordered, adjudged and decreed, that the said Alfred J. Brattingham be punished by imprisonment in the county jail of the county of Los Angeles for the term of one year; in addition, defendant shall pay a fine of $1000.00; or defaulting in said payment, he shall be punished by imprisonment in the county jail of the county of Los Angeles at the rate of one day for each two dollars of said fine not paid.”

This was done on July 29, 1927, and the defendant was at once remanded to the custody of the sheriff. On October 1, 1927, the defendant served notice that on October 7, 1927, he would move the superior court to modify the judgment by striking therefrom the following:

“Or defaulting in said payment, he shall be punished by imprisonment in the county jail of the county of Los Angeles, at the rate of one day for each two dollars of said fine not paid.”

It is claimed that the court was without jurisdiction to pronounce that part of the sentence sought to be stricken out. The motion was denied, and the defendant appeals. The People have moved to dismiss the appeal.

Appellant contends that an appeal is authorized by subdivision 3 of section 1237 of the Penal Code, which provides that an appeal may be taken from an order after judgment affecting the substantial rights of the defendant. It is also said that the court has inherent power at any time to vacate a void judgment. Generally this is true, but the rule is well established that an order made after judgment is not appealable where the motion merely asks the court to repeat or overrule the former ruling on the same facts. As said in

De La Montanya

De La Montanya,

People v. Brattingham

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CRAIG, J.

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