Prothero v. Superior Court

SHENK, J.

The petitioner commenced an action in the respondent court against John F. Boose and others to quiet his title to certain real property and for injunctive relief. The defendants filed an answer wherein affimative relief was sought. At the conclusion of the trial on October 15, 1924, the court made an order from the bench denying relief to both parties and caused an entry thereof to be made in the minutes as follows: “Argument opened and closed. Judgment of the court that both sides take nothing.” No findings of fact, conclusions of law, or judgment were made or entered pursuant to said order and findings were not waived. Thereafter, following an informal conference at which counsel for the respective parties were present, the court requested counsel for petitioner to prepare findings in favor of the plaintiff in said action. Findings so prepared were signed and filed by the judge on November 6, 1924, and judgment thereon in favor of the plaintiff was entered the following day. On November 17, 1924, the defendantW'in said action served and filed a notice of motion to set aside and vacate the judgment and to enter a new and different judgment on numerous grounds, including those mentioned in paragraph 1 of section 663 of the Code of Civil Procedure. On November 21st the court granted said motion. As a memorial of this action in that behalf the minutes of the court were caused to state: “Motion to vacate judgment granted. ’ ’ On December 5th the defendants served and filed a notice of motion for a new trial, designating therein December 12th as the date on which the motion would be made. On the day thus noticed the court filed a written order granting the motion of the defendants to set aside and vacate the said judgment and enter a new and different judgment and included in said written order the following: “It is hereby ordered, adjudged and decreed that said judgment so entered on the 7th day of November, 1924,

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was inadvertently entered and was not the judgment of this court, and the same is hereby annulled and set aside and the judgment as entered by the court on the 15th day of October, 1924, is the judgment in this action.” The court continued the hearing of the motion for new trial to December 19th, on which date the said motion was granted and the cause was set down for retrial on January 2, 1925. No new and different or other judgment was made or entered by the court following its order granting the motion to set aside the judgment entered November 7th.