Fountain Water Co. v. Dougherty

THE COURT.

Application for writ of

mandamus

requiring the defendant to settle the .plaintiff’s proposed, statement- on motion for new trial in a suit for the condemnation of land brought by the city of Santa Rosa against him and another. The case is submitted on demurrer to the petition, and, briefly stated, is as follows: A verdict was rendered in the case, on certain issues, December 29, 1900, and “thereupon,” it is alleged, “the court ordered the clerk to enter the following findings and judgment, which were then and there entered by the clerk in the minute-book, to wit.” Here follow the “findings and judgment” referred to. These were not signed by the judge or entered in the judgment-book. But they were treated by the parties and by the court as constituting the decision and judgment in the case; and accordingly, proceedings for a new trial having been taken by the defendant, the Foun

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tain Water Company (plaintiff here), a statement on motion for a new trial was settled and certified by the judge, April 24, 1901, the new trial being subsequently denied. But, on the next day after the settlement of the statement (April 25,1901), another judgment was made and signed by the judge, containing findings of fact, and (as ordered) entered

nunc pro tunc

as of December 29, 1900,—the date of the verdict, and of the former judgment and findings, if they can be so called; and, subsequently, other proceedings were taken for new trial by the same defendant, resulting in the presentation of another statement to the judge for settlement, which he refused to settle, on the grounds (in effect) that a statement had already been settled and certified, and that the only reason suggested for the settlement of the new statement was the supposed incorporation, in the last judgment, of a new finding.

The validity of the former ground must depend upon the question whether, prior to the findings and judgment signed by the judge April 25,1901, other findings had been filed and another judgment entered. If so, the additional finding contained in the last judgment, if material, would be invalid for want of power in the court to make it, and the proceedings for new trial therefore nugatory; and on this assumption the court would have been justified in refusing to sign the statement, or otherwise to act with regard to the proceedings.