Bliss v. Smith

STURTEVANT, J. This is a companion ease to the case entitled Smith v. Bliss, No. 11667 [ante, p. 171], this day filed. Except as noted the facts are fully set forth in that case.

After the death of Lulu Hannah Coffin, Charles A. Bliss was granted letters testamentary and proceeded to administer her estate. About sixteen months after the death of Mrs. Coffin, Mable Smith, this defendant, appeared and filed the written memorandum dated August 31, 1937, and at the same time filed a petition asking that it be admitted to probate as a codicil to the will of Mrs. Coffin. Charles A. Bliss, as one of the legatees under the will, appeared and filed a contest. In that contest he set forth two counts. Afterwards, by permission of the court, said contest was amended. Later this defendant filed an answer to said contest as amended. The pleadings of both parties were very full and complete. After a hearing of the parties the trial court made and caused to be filed a set of findings in favor of the plaintiff and against the defendant. Those findings were very full and complete. However, being dissatisfied with the findings the defendant made a motion for a new trial. After considering said motion the trial court made an order that the motion be denied, that the findings be amended, and that a second judgment be entered. The defendant appealed from both judgments and has brought up the judgment roll.

The defendant contends that the second judgment and the additional findings are void. (Linstead v. Superior Court, 17 Cal. App. (2d) 9 [61 Pac. (2d) 355].) That case is not in point. The trial court, in that case, had entered a decree of distribution but certain parties had not appeared. In an application by those parties to amend the decree of distribution such application affected directly the matter embraced in the decree. Another interested party having perfected [181]an appeal from the decree before the motion to vacate was made, the trial court had no power to set it aside on an application made under section 473 of the Code of Civil Procedure. The facts in the instant case are quite different. The judgment was entered August 24, 1939. A notice of intention to move for a new trial was filed August 29, 1939. The motion was denied October 16, 1939. The notice of appeal was filed October 17, 1939. Section 662 of the Code of Civil Procedure provides: “Causes tried without jury: Powers of court on motion for new trial. In ruling on such motion, in a cause tried without a jury, the court may, on such terms as may be just, change or add to the findings, modify the judgment, in whole or in part, vacate the judgment, in whole or in part, ...” It follows that the trial court did not exceed its power. (Veterans’ Welfare Board v. Burt, 4 Cal. App. (2d) 659 [41 Pac. (2d) 587].)