Herz v. Hereford

STEPHENS, J., pro tem.

Findings of fact, conclusions of law, and judgment for plaintiff were signed by the trial judge in this ease and duly filed. Thereafter defendant, appellant herein, moved the court to set aside the judgment entered and to enter. in its stead judgment for defendant on the ground that the judgment was not supported by the

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findings. (Secs. 663, 663a, Code Civ. Proc.) At the conclusion of the presentation of this motion, and on the fifteenth day of June, 1923, the court made the following order:

“The motion of the defendant to vacate the judgment herein coming on to be heard, and it appearing to the court that the findings and judgment herein were prepared and submitted by the attorney for defendant, and that the defects in the complaint therein were never called to the attention of the court by the defendant’s attorney until after the entry of judgment herein, and that the complaint herein should have been amended before entry of judgment to conform to the facts proved, and that defendant’s demurrer to the third cause of action of plaintiff’s complaint should have been sustained, now, therefore, the plaintiff, in open court consenting, it is ordered that the findings of fact, conclusions of law and judgment herein are hereby vacated, and the demurrer to plaintiff’s complaint is sustained and plaintiff is given ten days to amend the same.”

That the trial court was in error when it stated in its order that the defects of the complaint had never been called to its attention is established. A demurrer to the effect that neither alleged cause of action attempted to be stated in the complaint contained allegations of fact sufficient to state a cause of action was interposed, and, by statement of counsel for each party in their briefs, was argued to the court but before another judge.

While the order does not specifically deny the motion presented, it is inconsistent therewith and is in effect a denial thereof. The defendant appeals from the parts of said order which refuse to enter judgment in his favor on the findings of fact and which purport to set aside the findings of fact and to allow plaintiff ten days to amend his complaint.

The court exceeded its jurisdiction in making said order. It could not set aside or change its findings, no matter by whom they were prepared, and it follows, of course, that it had no power after findings were signed to grant time to plaintiff to amend his complaint, and such order as to these two points was void.