Reimer v. Firpo

PETERS, P. J. This is a motion to dismiss an appeal. In January, 1937, Louise A. Reimer and her husband, Martin Reimer, brought an action against various named defendants. The case was tried over a period of several days in November, 1938, without a jury, before Honorable Maurice T. Dooling, Jr., then the duly qualified superior court judge for San Benito County who had been duly assigned by the Judicial Council to sit as a judge of the Superior Court of San Francisco. On November 23, 1938, a minute order was entered directing that judgment be entered in favor of Theresa Firpo and Bayern Bund, two of the defendants, “and sub[800]mitted as to all other defendants. ’ ’ On March 14, 1939, a minute order was entered directing “that judgment he entered in favor of the plaintiffs in the sum of $2500.00” against the remaining defendants, Peter Firpo, Benno Pinole and G. Garibaldi. Findings of fact and conclusions of law were never signed or filed, and a formal judgment has never been entered. In 1945, Judge Dooling became, and ever since has been, a justice of the District Court of Appeal, First Appellate District, Division Two.

In January, 1949, plaintiff, Louise A. Reimer, moved the trial court for an “order setting aside submission of cause and order for entry of judgment and granting movant a new trial, as to defendants Peter Firpo, Benno Pinole and G. Garibaldi,” on the ground that such relief would be in the interests of justice in that Judge Dooling is no longer a member of the superior court and is unable to enter a proper judgment, Under date of February 4, 1949, the presently acting presiding judge of the San Francisco Superior Court entered his order:

1. Granting the motion as prayed;

2. Vacating the order of submission of November 23,1938;

3. Vacating and setting aside the order of March 14, 1939, directing entry of judgment; and stating that

4. 1 ‘ The above entitled cause is enlarged for a new trial as to the Plaintiff Louise A. Reimer and Defendants Peter Firpo, Benno Pinole and G. Garibaldi.”

From this order Firpo and Garibaldi have appealed. After the filing of the appellants’ opening brief, Louise A. Reimer filed the present motion to dismiss the appeal, on the ground that the order appealed from is nonappealable.

If the questioned order is one granting a new trial, in the legal sense, said order is, of course, appealable, whether correctly or incorrectly granted. But that is not the precise nature of the order. It is quite clear that, when a ease requiring findings is tried, the trial is not complete but is still in process of determination until findings are signed and filed. Until that time, the trier of the fact may change his mind, and, even though an order has been made directing the entry of judgment, may order a different judgment to be entered.