Southwest Sulphur Co. v. Superior Court

YORK, J. This matter comes before us on a petition for a writ prohibiting the trial court from proceeding to try a case anew after a motion for a new trial had been granted.

The record in this case was in a very chaotic state until the hearing before this court on October 8, 1935, at which [148]time the attorney for petitioner stipulated that the facts set forth in the answer to the petition for the writ of prohibition were true.

The original action herein was one to quiet title, and after trial thereon was had, respondent judge announced his decision and ordered judgment for the plaintiff (petitioner here) ; proposed findings were prepared and presented by plaintiff, objections thereto were presented by defendant Ramey and hearings were had thereon, at which time respondent judge directed that specified changes be made in said findings and at which time he also directed plaintiff’s attorney Hampton and the defendant Ramey to agree upon as many findings as possible, and then present the matter to him for settlement as to any findings upon which they were unable to agree, said respondent judge agreeing that he would not settle or sign said findings unless the objections of defendant to the proposed findings had been removed, or until a hearing was had thereon. In his objections and proposed amendments, said Ramey had asked for findings diametrically opposed to the findings contained in a certain paragraph of the findings as proposed by plaintiff, and respondent judge directed that a finding be substituted for that particular paragraph as would be in substantial accord with the findings proposed by Ramey in his objections.

On or about June 18, 1934, findings were presented to respondent judge, and believing and having been given to understand that the paragraph in controversy had been changed, as directed, he signed said findings and the judgment ex parte and thereafter, on June 21, 1934, the said judgment was entered. Upon being advised that the findings had not been changed as he had directed, the respondent judge ordered a hearing, and on June 28, 1934, said Hampton and said Ramey appeared before him, and he thereupon, after hearing, made a minute order vacating and setting aside the judgment and findings theretofore entered on the 21st day of June, 1934. On April 9, 1935, an order was made vacating said minute order of June 28, 1934, and “findings are ordered for the plaintiff in this action as of this date”.

Thereafter, to wit, on the 20th day of April, 1935, defendant Ramey served upon plaintiff in said action and filed with the clerk of the court a notice of motion to move for new trial, and on the same date, the defendant served upon plain-