SLOSS, J., Concurring.
I concur in the judgment. It is clearly shown by the opinion of Mr. Justice Melvin that the
[596]
petitioner, Robson, would not be affected by a new trial of the issues raised between the plaintiff in the foreclosure suit and Hoyt. This being so, the petitioner is not a party “beneficially interested,” and is not therefore in a position to seek a writ of prohibition against the trial of such issues. (Code Civ. Proc., sec. 1103.)
He is, however, directly interested in preventing another trial of the action against himself as defendant. By the judgment he is made liable for a deficiency in the proceeds of the sale. The property has been sold on foreclosure and the amount of the deficiency ascertained. In the event of a new trial, a new judgment, and a new sale, the deficiency for which Robson is liable may be greatly increased.
It follows that, as is held in the foregoing opinion, any new trial should be confined to the issues between the bank and Hoyt, leaving the judgment of the bank against Robson standing as a final adjudication. This was precisely the effect of the writ of prohibition directed on the former submission of .the present proceeding. The correctness of the conclusion is conceded by the respondents in their brief filed since their petition for rehearing was granted. If, as they claim and as we hold, Robson was not an adverse party to Hoyt, and could not be affected by a new trial granted to Hoyt, there is no occasion to consider whether the court properly set aside, as to Hoyt, the order denying a new trial. But as this question is discussed in Mr. Justice Melvin’s o°pinion, I deem it proper to say that I do not assent to the views expressed by him with respect to the right of a court to vacate, on an
ex parte
application, an order granting or denying a new trial. On this point I adhere to what I said in the former opinion, from which I quote:
“The petitioner takes the position that when an application for a new trial has been made in due form and the court has passed upon it, the order made is conclusive so far as the court making it is concerned, and that court cannot afterward vacate the order and again decide the motion. As a general proposition, this contention is unquestionably sound.
(Coombs
v.
Hibberd,
43 Cal. 452;
Odd Fellows’ Sav. Bank
v.
Deuprey,
66 Cal. 168, [4 Pac. 1173];
Dorland
v.
Cunningham,
66 Cal. 484, [6 Pac. 135];
Lang
v.
Superior Court,
71 Cal. 491, [12 Pac. 306, 416];
Carpenter
v.
Superior Court,
75 Cal. 596, [19 Pac. 174];
Holtum
v.
Greif,
144 Cal. 521,
[597]
[78 Pac. 11].) The ‘statute,’ says the court in
Dorland
v.
Cunningham,
66 Cal. 484, [6 Pac. 135], ‘authorizes but one motion for a new trial, and makes the ruling thereon final, so far as the superior court is concerned. ’ If error has been committed in granting or denying the motion, the proper mode of seeking redress is by appeal, as in the case of any final order or judgment of the superior court.
“The objection that the lower court has improperly vacated its final order is one that goes to the jurisdiction of the court.
(Lang
v.
Superior Court,
71 Cal. 491, [12 Pac. 306, 416];
Carpenter
v.
Superior Court,
75 Cal. 596, [19 Pac. 174] ;
Holtum
v.
Greif,
144 Cal. 521, [78 Pac. 11].) . . .
“An order granting or denying a motion for a new trial is, of course, like other orders, subject to be set aside under section 473 of the Code of Civil Procedure. But the granting of such relief implies an application to the court by the party against whom the proceeding was taken, upon notice to the adverse party and upon a proper showing, and it is not claimed that in this case there was any attempt to invoke or to exercise the power conferred on the court by section 473.
“There is one further limitation upon the rule prohibiting the court from vacating its order once made, and upon this the respondents place their reliance. Where an order has been made ‘irregularly and through inadvertence,’ the court has power, of its own motion or on application of a party, to set the order aside.
(Morris
v.
De Celis,
41 Cal. 331;
De Gaze
v.
Lynch,
42 Cal. 362;
Hall
v.
Polack,
42 Cal. 223;
Odd Fellows’ Sav. Bank
v.
Deuprey,
66 Cal. 168, [4 Pac. 1173], and cases cited;
Holtum
v.
Greif,
144 Cal. 521, [78 Pac. 11];
Whitney
v.
Superior Court,
147 Cal. 536, [82 Pac. 37].) This rule has been applied in eases where the order was prematurely made, as, for example, where a statement to be used on the motion has not been settled, or there had been no submission of the motion. In such cases the court has acted irregularly and inadvertently in undertaking to pass upon a motion which had not been brought before it, and its improvident action may be set aside. This does not mean that an order may be vacated because the court concludes, after making it, that it erred in matter of law or fact, or because one of the parties was guilty of some inadvertence which resulted to his disadvantage. The inadvertence which will
[598]
justify the setting aside of an order (except under section 473) is the inadvertence of the court, not of a party.
“We think there was here no basis for the court’s action in setting aside its order denying a new trial. The notice of intention had been served and .filed, the bill of exceptions had been duly settled and was on file, and the motion appeared regularly on the calendar of the court for argument on February 21, 1913. On that day, there being no appearance for the moving party, Hoyt, the motion was called and answered ‘ready’ by counsel for plaintiff, who submitted the motion, which was thereupon denied. All of this was perfectly regular, and the court did not act improvidently or inadvertently. It appears, however, that there had been an oral understanding between counsel for Hoyt, and a member of plaintiff’s firm of counsel, that the hearing of the motion should be continued. This was not known to the attorney who appeared for plaintiff on February 21st. The misunderstanding in this regard would unquestionably have supported a claim of inadvertence or surprise on the part of Hoyt, but we cannot see that it tended to show any inadvertence or irregularity on the part of the court. If the disregard of oral stipulations, or misunderstandings between counsel, could authorize the court of its own motion, or on an
ex parte
application, to set aside judgments or orders as improvident, the finality of judicial determinations would be seriously impaired. Reasons like these are typical illustrations of the grounds upon which relief should be sought under section 473.”
I do not stop to discuss the question whether
Whitney
v.
Superior Court,
147 Cal. 536, [82 Pac. 37], can be successfully distinguished from the case at bar. If there be no valid ground of distinction, I think the decision in the Whitney case is in conflict with the rules established by a long line of prior decisions, and with fundamental principles governing the finality of judicial determinations.
Shaw, J., concurred.