Rubin v. De Lao

MOORE, P. J. Here is the record of an unfortunate episode in the life of Jacob Rubin. He was a pedestrian, .52 years of age at 9:15 p. m. on March 2, 1949. While in the act of crossing Alvarado Street, a north-south thoroughfare in Los Angeles, he was run down by appellant. The latter, driving westerly on 12th Street, came to a stop at Alvarado. It was dark; the streets were paved, wet and sleek. As respondent stood on the southwest corner ready to cross Alvarado to its east side, he observed appellant’s car approaching Alvarado at a distance of about a half block to the east. Its headlights were visible over 200 feet away. Giving signal for a left turn, appellant started westward in low gear. When he had almost completed the turn, respondent, clad in dark clothes, having started easterly with the. green light, suddenly loomed before appellant about 6 feet west of the vehicle. Respondent had not continued to watch the car as he started to make the crossing. He testified he saw it next when it was within 2 feet of him in the crosswalk. Basing the decision upon its determination of the [347]facts proved, the court, evidently under the misapprehension that findings had been waived, entered judgment in favor of respondent. Appellant made his motion for a new trial. At the time of hearing that motion, appellant insisted that he had not waived findings. The court ordered the motion off calendar and granted respondent’s request to vacate the judgment. While appellant was appealing from the first judgment (Appeal No. 18396) and from the order vacating it (Appeal No. 18397) the court prepared and filed its findings that defendant did so negligently operate his automobile as to cause it violently to strike and collide with respondent, knocking the latter down. Judgment was entered upon such finding awarding damages to respondent. From that judgment comes the instant appeal. (No. 18617.) The second motion for a new trial based upon the second judgment was duly denied.

By these appeals appellant seeks first a reversal of the order setting aside the first judgment. Also, he demands a reversal of the second judgment on three grounds, to wit; (1) the court had no jurisdiction to vacate the first judgment and to order the preparation of findings and entry of the second judgment; (2) error in denying a new trial on the ground of newly discovered evidence; (3) plaintiff’s actions constituted contributory negligence as a matter of law.

The recital in the first judgment that findings were waived was merely a clerical error. Where some provision of, or omission from, an order or judgment as rendered was due to the inadvertence or mistake of the court it is properly treated as a clerical misprision rather than as a judicial error. (Morgan v. State Board of Equalization, 89 Cal.App.2d 674, 677 [201 P.2d 859].) Accordingly, the court had inherent power either on its own motion, or on ex parte application, or on notice, to set aside the erroneous judgment signed through inadvertence. (Estate of Costa, 37 Cal.2d 154, 157 [231 P.2d 17]; Morgan v. State Board of Equalization, supra, p. 677.)