Mace v. O'Reilley

California Supreme Court Jul 28, 1886 No. No. 11385Published

Before: Foote

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Holding. The court held that a judgment entered without the required findings, which were not waived by all parties, is invalid and may be properly set aside by the trial court.

Issues

Whether a trial court may set aside a judgment for lack of findings when such findings were not waived by all parties.
Whether the expiration of a court term or the passage of time limits the court's jurisdiction to vacate a judgment for lack of findings.
Whether a waiver of findings by one party is sufficient to support a judgment without the concurrence of the other party.

Disposition. affirmed

Quotations verified verbatim against the opinion

“It is very evident that no valid judgment was entered in this cause during the administration of Judge Howard, as an order for judgment is not a final judgment.”

“a waiver of findings to be conclusive must be assented to by all the contending parties to an action.”

“no error was committed by the court in setting aside the judgment for the want of findings.”

Synopsis

Practice—Expiration op Term op Judge—Entry op Judgment after — Findings — Waiver op. — Where the term of office of the judge who tried the case expires after an order for judgment has been entered, but before the findings have been filed, no valid judgment can be entered in the action without a new trial being had, unless agreed findings are filed or waived by both sides.

Id.—Judgment Entered without Findings—Motion to Vacate — Notice— Time for Making Motion.—If no agreed findings'are filed or waived, a judgment entered in conformity with the order after the expiration of-the term of office of the trial judge may be set aside for want of findings on the motion of the party in whose favor the judgment is entered, without notice to the opposite party, notwithstanding the latter offers to waive findings, or to have them made by the successor of the judge who tried the case, and tenders to the prevailing party the amount of the judgment. Such a motion may be made after the expiration of six months from the date of the order for judgment, and after the termination of the session of the court at which it was made.

Id.—Motion mat be Renewed after Denial—Jurisdiction—Discretion. — In Such a case, the court has jurisdiction, and it is within its discretion, to allow the motion to vacate the judgment to be renewed, although it had previously been denied.

Foote, C. Mace brought an action for malicious prosecution against O’Reilley, claiming five thousand dollars damages.

The cause was tried by the court without a jury, and an order for judgment for one hundred dollars entered in the minute-book of the trial court in favor of the plaintiff, but no findings were filed or waived, and no final judgment ever entered. The order for judgment was made on the 16th of September, 1884. On the 19th of January, 1885, plaintiff moved the court to set the cause for trial, assuming that such was the proper course to pursue. That motion was denied by the court, and afterward, on the thirtieth day of March, 1885, the plaintiff served a notice and affidavit for the hearing on the thirteenth day of April, 1885, of a renewel of that motion, which the court had granted him leave to make.. The affidavit set out, among other things, that the cause had been tried originally by Judge Howard, whose term expired in January, 1885, and that no findings had ever [233]been filed, or final judgment entered, or any other proceeding had since the entry of the minute order of the judge of the 16th of September, 1884.

The defendant resisted this last motion, on the grounds that after the entry of the order of September 16, 1884, he had paid the amount of the judgment to the clerk of the court for the plaintiff, and had thereby waived all findings and entry of formal judgment in the action, because the court had no jurisdiction to grant the motion on the ground alleged, and that no notice was served 'within six months from the entry of the order for judgment; and further, because the defendant again waived all findings or judgment, and tendered and offered the money to the plaintiff, then on deposit with the clerk. On the 13th of April, 1885, the motion to place the cause on the trial calendar and vacate judgment was denied; the court basing its ruling upon the ground that the minute order of September 16, 1884, was not a nullity, and therefore that it could not wholly grant the motion, and that a final judgment must first be entered upon said order, and then plaintiff could attack that judgment thus made.

In pursuance of that suggestion, on the first day of June, 1885, the plaintiff moved the court to enter judgment in accordance with the order of Judge Howard.

On the 14th of September, 1885, the judgment on that order was made and entered by the clerk of the court.

The motion of the 1st of June, 1885, for entry of judgment, and the order of the 14th of September, 1885, in relation thereto, were without notice to the defendant.

Mace v. O'Reilley

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