White v. Ostly

TOBRINER, J. Appellants’ contention here that the county clerk must enter in the judgment hook a “Judgment of Dismissal” rendered after the court granted a motion to dismiss, with directions to the attorney to prepare the order, cannot be sustained in the face of section 581d of the Code of Civil Procedure, the desirability of simplicity of procedure, the legislative intent, and the practical considerations involved.

Appellants here are defendants in the case of Oppenheimer v. Ashburn, ante, p. 624 [343 P.2d 931] (Los Angeles Superior Court No. 691595) which we have decided on appeal this day (1 Civ. 18508). In that action the Superior Court in and for the County of Los Angeles on February 5, 1958, sustained demurrers of appellants to the amended complaint granting 10 days in which to amend. When plaintiff failed to amend within the designated time appellants moved to dismiss pursuant to section 581, subdivision 3. On March 25, 1958, the court ruled “Motion Granted Attorney To Prep are Order.”

On March 28, 1958, respondents filed a document signed by Judge John F. Aiso of that superior court entitled “Judgment of Dismissal,” in which it was stated: “[T]he Court having sustained . . . demurrers with 10 days leave' to amend, the plaintiff having failed to amend . . . within . . . time allowed, and the said defendants having presented an application for dismissal under Code of Civil Procedure Section 581(3) and affidavit in support thereof;

“Now Therefore, It Is Ordered, Adjudged and Decreed that plaintiff’s amended complaint be, and the same is hereby dismissed as to . . . [defendants White, Doran and Fourt] said defendants [to] recover their costs of suit against plaintiff taxed herein [at] . . . $4St@0.”

The county clerk refused to enter the “Judgment of Dismissal” in the judgment book, stating that the decision in Sheta v. Grahm (1957), 156 Cal.App.2d 77 [318 P.2d 756], held that an appeal “filed within 60 days after the date of entry in the judgment book” but more than 60 days after the filing date of the formal order of dismissal, “was filed too [638]late.” The clerk contended that “if the entry date in the judgment book is disregarded as the date from which the time for appeal starts to run, ... it serves no purpose for the Clerk to make such entry, and . . . such entry might place the Clerk in the position of misleading a prospective appellant as to the time from which an appeal starts to run.” Not convinced of the validity of the clerk’s position, appellants petitioned for a writ of mandate on May 9, 1958, directing the clerk to enter the “Judgment .of Dismissal” in the judgment book. The superior court thereupon issued an alternative writ.