Sparrow's Real Estate Service, Inc. v. Appellate Department of the Superior Court

CONLEY, P. J. This writ of review tests the meaning and effect of rule 107 of the California Rules of Court as to when a decision of the appellate department of the superior court becomes final.

On October 25, 1963, in a case entitled, “Sparrow’s Real Estate Service, Inc. v. Paul Little,” and numbered therein 31157, the Municipal Court of the Bakersfield Judicial District rendered judgment for the plaintiff, who is petitioner herein, and against the defendant in that action, who is real party in interest herein, for $825, together with costs of suit and attorneys’ fees.

On November 8, 1963, the defendant, Paul Little, filed a notice of appeal to the Appellate Department of the Superior Court of Kern County, and, after a hearing, it affirmed the municipal court’s judgment on March 2, 1964. This judgment of the appellate department became final seven days thereafter according to the explicit provisions of rule 107 of the California Rules of Court, which reads as follows:

“Rule 107. Rehearing and finality of judgments

“ (a) [Time for rehearing] At any time before a judgment of an appellate department becomes final, as hereinafter provided it may vacate such judgment and order a rehearing.

“(b) [When judgment becomes final] Unless a rehearing shall be so ordered, every judgment of an appellate department shall become final as follows:

“(1) Upon the expiration of seven days after the same shall have been pronounced, unless one or more petitions for a rehearing shall have been filed within said period of time;

“(2) If one or more petitions for a rehearing shall have been filed within said time, then upon the expiration of 30 days after such judgment shall have been pronounced, if such rehearing shall not meanwhile have been granted, or upon the denial of all such petitions if all shall be sooner denied.

“(3) Where the judgment is modified before it becomes final, as above provided, the period specified herein begins to [741]run anew, as of the date of modification; but a change of the opinion without modification of the judgment does not postpone the time when the judgment becomes final.

“(c) [Petition, answer and determination] A petition for a rehearing must be served on all adverse parties before filing, and filed within seven days after the judgment shall have been pronounced, and shall not be filed unless accompanied by due proof of such service. An answer to any such petition may be served on the petitioning party and filed, if accompanied by due proof of such service, within three days after service of such petition. If a rehearing be ordered, the appellate department may place the ease on the calendar for further argument or submit it for decision.