McLeod v. McMahon

ROTH, J., pro tem. On June 26, 1935, pursuant to a motion therefor, made on all grounds set up in the statute, section 657 of the Code of Civil Procedure, the trial court filed a “Memorandum in re Motion for New Trial” (hereinafter called “first order”) which, after calling attention to a certain instruction which the court stated it was persuaded had “misdirected” the jury, and wherein there was a discussion of certain phases of the evidence, concluded as follows: “For this reason a new trial will be granted.”

On the next day the trial court instructed the clerk to enter and there was entered a minute order (hereinafter called “second order”), as follows: “Motion by plaintiff for new trial heretofore submitted on June 14, 1935, is now by the Court granted upon the ground of the insufficiency of the evidence to justify the verdict and upon errors in law occurring at the trial and excepted to by the plaintiff. Memo in re motion filed.”

[567]Appellant appeals solely from the second order and his first contention on appeal is that the second order is void because the first oider is the complete order of the court on the motion for a new trial, and that the second order is surplusage. The immediate, and it seems to us conclusive, response to this contention is that if appellant’s assertion is sound, then his appeal is waste motion because even were we persuaded to reverse the second order appealed from, the first order would stand as the order since no appeal has been taken from the first order and the time within which one might have been taken has long since expired.

If appellant is correct in his contention that the first order is the order, then it would have been essential to have taken an appeal from the first order as well as from the second order. (Robbins v. Jenkins, 9 Cal. App. (2d) 580 [50 Pac. (2d) 826]; Gulf Mail S. S. Co. v. W. A. Hammond S. S. Co., 67 Cal. App. 420 [227 Pac. 938]; and Id., 67 Cal. App. 424 [227 Pac. 940]; Livesay v. Deibert, 3 Cal. App. (2d) 140 [39 Pac. (2d) 466].) Assuming, further, that appellant is correct in his contention that the first order is the order, then an ambiguity was created in the first order by the second order, and it was appellant’s duty to take appropriate proceedings in the trial court for an amendment or correction of the first order or the second order or both, so that an order could have been entered to speak the truth. From such a corrected order an appeal might have been taken which would have attacked the entire situation. (Wutchumna Water Co. v. Superior Court, 215 Cal. 734, 739 [12 Pac. (2d) 1033].) On the merits, however, it is clear to us that the first order was never intended by the trial court to be the order, and in a situation such as that which exists in the case at bar, the intention of the trial court is decisive of the character of the first order. In the Wutchumna ease, supra, the court says, at page 738: “Whether remarks made at the conclusion of a hearing are a rendition of the court’s decision, on the matter before it, or a mere announcement or memorandum of the decision which the court contemplates making by signed order, depends on the intention of the court. (14 Cal. Jur. 856; 1 Freeman on Judgments, p. 81.) ”