Leftridge v. City of Sacramento

California Court of Appeal Dec 19, 1941 No. Civ. No. 6759Published

Before: Tuttle

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Holding. The court held that a trial court lacks the power to enter a nunc pro tunc amendment to a judgment if the effect is to deprive a litigant of the right to appeal a new adjudication, and that an order discharging respondents from a writ of mandate after final judgment is an appealable special order.

Issues

Whether a trial court may enter a nunc pro tunc amendment to a judgment that effectively creates a new adjudication and impacts the right to appeal.
Whether an order discharging respondents from a peremptory writ of mandate after final judgment is an appealable special order.

Disposition. Motion to dismiss appeal from judgment granted; motion to dismiss appeal from order denied.

Quotations verified verbatim against the opinion

“The court had no power to enter a judgment nunc pro tunc where the effect would be to deprive one of the litigants of the right to appeal in respect to the new adjudication.”

“The order here, made after the final judgment, discharged respondents from further compliance with the writ of mandate. It had a direct bearing upon the enforcement of the judgment, and was therefore appealable.”

TUTTLE, J. On the 3rd day of April, 1941, appellants gave and filed a notice of appeal from:

“1. That certain order discharging respondents from peremptory writ of mandate, made and entered herein on the 10th day of March, 1941, and from the whole of said order; and

“2. That certain amendment to judgment, and judgment, entered herein against petitioners and in favor of respondents on the 24th day of March, 1941, and from the whole of said amendment to judgment, and judgment. ’ ’

Clerk’s and reporter’s transcripts were filed in due time in this court.

On the 8th day of October, 1941, respondents filed notice to dismiss said appeal upon the following grounds:

“1. That the amendment relates back and the original judgment stands, and therefore the attempted appeal is too late, (see Grounds of Motion to Dismiss Appeal from the Judgment).

“2. That the amendment to the judgment was not a re-adjudication of the ease; it was simply the correction of a ministerial error.

[591]“3. That the court has power on its own motion at any time to amend the entry of the judgment to make same correspond to the judgment as rendered.

“4. That the said appeal is frivolous in that: A. The subject matter of said amendment to judgment, to-wit: denial of claim for back wages, was passed upon by the court and recorded twice: (1) in the minutes of the court as set out on page 40, clerk’s transcript, lines 23, 24; (2) in the findings of fact as set out on page 46, clerk’s transcript', lines 16 to 20; that the judgment of the court rendered included the denial of claim for back pay even though it was not included in the formal judgment as entered by the clerk.

“5. That no prejudice is shown and no academic appeal is permitted.

“6. That the attorney for appellants drafted not only the findings, but the judgment, and is now estopped to take advantage of his own error in omitting from the judgment the decision of the court in the matter of back pay.”

The action sought to be dismissed arises out of a petition for a writ of mandate, wherein appellants, civil service employees of the city of Sacramento, seek to compel respondents, as members of the civil service commission and city council, to fix the prevailing wage scale which should be paid appellants, under the following provisions of the city charter:

Leftridge v. City of Sacramento

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