Boyd v. Lancaster

BARNARD, P. J. This is an. action to set aside a deed from Henry 0. Boyd to J. M. Lancaster. On June 29, 1937, the court found that the deed was voidable because of the mental condition of Boyd and the inadequacy of the consideration, but that $5,300 was due to Lancaster on account of advancements made to Boyd. It was concluded that the property should be reconveyed to Boyd on the payment of $5,300 to Lancaster within sixty days and if the amount was not paid title was to be quieted in Lancaster. In September, 1937, and after the death of Boyd, it was found that the money had not been paid within the time allowed and judgment was entered quieting title in the defendant. On appeal, that judgment was reversed because no substitution of parties had been made after the death of Boyd. (Boyd v. Lancaster, 32 Cal. App. (2d) 574 [90 P. (2d) 317].)

On August 17, 1939, another judgment was entered decreeing that the $5,300 had not been paid within the time allowed, that no extension of time therefor had been given, and quieting title to the property in the defendant. The plaintiff again appealed from that judgment and the same was reversed on the ground that the time for the payment of the money had been extended and that there had been a substantial and actual compliance on the part of the plaintiff with the terms of the interlocutory order. (Boyd v. Lancaster, 43 Cal. App. (2d) 161 [110 P. (2d) 532].) The order of reversal was as follows: “The judgment is reversed with directions to enter judgment in favor of the appellant, with an appropriate order turning over the money deposited to the respondent.”

In compliance with said order the trial court on July 9, 1941, entered a judgment in favor of the plaintiff. The defendant moved for a new trial, which motion was denied on September 8, 1941. The defendant then gave notice of appeal from this judgment on September 16, 1941, and the appeal is presented upon a transcript of the evidence.

The appellant filed his opening brief and thereafter the respondent moved to dismiss this appeal on the grounds that all matters in controversy have been finally determined on the previous appeals, that these decisions have become the law of the case, and that notice of appeal, being filed more than sixty days after the entry of the judgment, was too late since the appellant had no right to move for a new [481]trial and the purported motion therefor could not have extended the time for taking an appeal.

The respondent particularly relies on Kramer v. Superior Court, 35 Cal. App. (2d) 239 [95 P. (2d) 158]; Snoffer v. City of Los Angeles, 14 Cal. App (2d) 650 [58 P. (2d) 961] ; and Lial v. Superior Court, 133 Cal. App. 31 [23 P. (2d) 795]. These cases are not controlling under the circumstances which here appear. The Kramer case held, in effect, that when a judgment has been entered as rendered by an appellate court the trial court has no jurisdiction to entertain a motion for a new trial or to otherwise modify the judgment insofar as the issues have been settled on the previous appeal. In the Snoffer case a judgment and order granting a new trial had been reversed on a previous appeal on the ground that the plaintiff’s cause of action was barred, with directions for the entry of judgment in favor of the defendant. Such a judgment was entered, followed by an order granting a new trial. On appeal, this order was reversed on the grounds that the previous appeal had finally determined that the plaintiff could not maintain his action and that the complaint could not be so amended as to set up a good cause of action. On a previous appeal in the case of Lial v. Superior Court, supra, it had been held that the contract on which the plaintiff relied was void and the judgment was reversed with directions to enter judgment against the plaintiff. This was done but a motion for a new trial was then granted. This order was reversed on the ground that the cause had been determined on its merits and that new issues could not, therefore, be set up by amendment in order to secure a trial de novo.