Hunydee v. Superior Court

GRIFFIN, P. J. Petitioner Lee Hunydee, as plaintiff, brought an action in the Superior Court of San Diego County against Nick Zunic, et al., defendants, involving a promissory note. The trial was had before the court sitting without a jury and findings and judgment were signed holding against the plaintiff and in favor of defendants. Plaintiff moved for a new trial on July 25, 1961. It was granted and the clerk entered an order in the permanent minutes granting a new trial. In granting the new trial, the trial court made a statement to the effect that if the court had the power to amend the findings it would do so but it doubted it had such power. Apparently, the following day, the court, on its own motion, held a hearing on the question of setting aside the order granting the new trial upon representation of counsel for defendant that he believed the court did have the power to amend the findings. The court then made an order, as reflected by the permanent minutes, rescinding and setting aside the previous order granting the new trial, denied the motion for new trial, set aside the previous findings and judgment, and directed the attorney for defendant to prepare new findings and a new judgment. Apparently, new findings and judgment were served on petitioner but were never signed before petitioner here filed this petition for writ claiming the first order granting a new trial was final and that the trial [432]court lacked jurisdiction to amend it for the judicial error committed as indicated.

The writ sought to prohibit the superior court from entering any further findings or judgment for that reason. An order to show cause was issued by this court and written and oral arguments were presented and considered.

When a motion for a new trial has been timely made, on the hearing, if through inadvertence or clerical mistake, certain judicial errors appear in the findings or judgment, then the court, at the time of the ruling on the motion, has authority to set aside, change or add to the findings, modify or vacate the judgment, or grant a new trial on all or part of the issues. (See Code of Civil Procedure, section 662; Moklofsky v. Moklofsky, 79 Cal.App.2d 259 [179 P.2d 628].) This does not apply to correcting judicial errors after an order has been properly entered granting or denying a motion for a new trial. (Bastajian v. Brown, 19 Cal.2d 209 [120 P.2d 9] ; 36 Cal.Jur.2d §§ 169-170, pp. 381-383; Parr v. Swanson, 102 Cal.App.2d 666 [228 P.2d 26].) Code of Civil Procedure, section 660, makes it quite clear that the entry of the order granting a new trial in the permanent minutes of the court constitutes a determination of the motion. (3 Witkin, California Procedure, 1959 Supp., p. 68, § 32A.)