Whitley v. Superior Court

This is an application by the petitioner, Mable Whitley, for a writ of certiorari seeking to annul, vacate and set aside two nunc pro tunc orders made and entered in the Superior Court of the County of Los Angeles, granting a motion for new trial on the ground of the insufficiency of the evidence to sustain the verdict of the jury.

Petitioner, as plaintiff, instituted action against Belyea Truck Company, a California corporation, and Fred Clement to recover for personal injuries. After a trial by jury, verdict was rendered in her favor in the sum of $3,000 and judgment was entered accordingly on April 25, 1940. Defendants duly filed a notice of intention to move for a new trial, which notice enumerated all but one of the statutory grounds for a new trial, including the ground of insufficiency of the evidence to sustain the verdict. (Code Civ. Proc., sec. 657.) The trial court, after the hearing, orally granted the motion for new trial on May 28, 1940, and on this same day a minute order was entered by the clerk specifying that “the said motion is by the court granted upon the insufficiency of the weight of the evidence to support the verdict.” On June 1, 1940, plaintiff filed her notice of appeal.

The question for decision in this proceeding, therefore, is whether these nunc pro tunc orders awarding a new trial on the ground of the insufficiency of the evidence are valid, since neither was made within ten days after the motion was granted or “filed with the clerk”.

Prior to the 1939 amendment to section 657, Code of Civil Procedure, subdivision 7 thereof read: “When a new trial is granted, on all or part of the issues, upon the ground of the insufficiency of the evidence to sustain the verdict, the order shall so specify; otherwise, on appeal from such order it will be presumed that the order was not based upon that ground.” (Stats. (1929), chap. 479, p. 841.) The amendment of this section became effective prior to the trial of this action and reads: “When a new trial is granted, on all or part of the issues, upon the ground of the insufficiency of the evidence to sustain the verdict or decision, the order shall so specify this in writing and shall he filed with the clerk within ten days after the motion is granted; otherwise, on appeal from such order it will be conclusively presumed that the order was not based upon that ground. The court may direct a party to prepare the order.” (Stats. (1939) chap. 713, p. 2234.)

In a number of decisions prior to the 1939 amendment of said section 657, it was held that where an order for a new trial failed to state that it was being granted on the ground that the evidence was insufficient to sustain the verdict or decision, the trial court could properly file a nunc pro tunc order setting up that ground, if in fact it had been relied upon. (Halpern v. Superior Court, 190 Cal. 384 [ 212 Pac. 916 ]; Livesay v. Deibert, 3 Cal. App. (2d) 140 [ 39 Pac. (2d) 466 ]; Kohlstedt v. Hauseur, 24 Cal. App. (2d) 60 [ 74 Pac. (2d) 314 ].) The legislature is presumed to have known of these prior decisions and to have considered them at the time of the amendment. (Estate of Moffitt, 153 Cal. 359 [ 95 Pac. 653 , 1025, 20 L. R. A. (N. S.) 207 ]; Hoffman v. McNamara, 102 Cal. App. 280 [ 282 Pac. 990 ]; Estate of Garthwaite, 131 Cal. App. 321 [ 21 Pac. (2d) 465 ]; 23 Cal. Jur. 782, and authorities there cited.) In construing statutory language, it is fundamental, if possible, to give effect to each sentence, phrase and word thereof. (Estate of Garthwaite, supra; 23 Cal. Jur. 758, and authorities there cited.) The fact that the legislature in 1939 amended section 657, subdivision 7, so as to impose a ten day limitation for filing such

Another circumstance to be noted in our consideration of the intended character of this statutory language is the fact that a penalty is attached to a failure to act in time. The well-established principle of construction that where consequences are attached to a failure to act in accordance with legislative direction, such direction is mandatory, was recognized in the recent case of Thomas v. Driscoll, 42 Cal. App. (2d) 23 [ 108 Pac. (2d) 43 ], wherein the following discussion appears at page 27 :

“ ... Although imperative words are sometimes held to have only a directory meaning, this rule of interpretation is not applicable when a consequence or penalty is provided for a failure to do the act commanded. This is a California rule and is supported by the weight of authority in other jurisdictions. In Shaw v. Randall, 15 Cal. 384 , where the court, in disposing of a contention that the statute was directory only, said: ‘In construing the statute we must look to the language used and endeavor, if possible, to ascertain the intention of the Legislature . . . where a consequence is attached to a failure to comply . . . the consequence can be avoided only by compliance with the statute.’ This was followed in Perine v. Forbush, 97 Cal. 305 [ 32 Pac. 226 ], and in McCrea v. Haraszthy, 51 Cal. 146 . The same doctrine is applied by the courts of Missouri in Hudgins v. Mooresville Consol. School Dist., 312 Mo. 1 [ 278 S. W. 769 ] and in Ousley v. Powell, [Mo. App.] 12 S. W. (2d) 102 .”

Respondent, in support of its contention that the ten day requirement is merely directory, cites Smith v. Jaccard, 20

We are not here concerned with a mere error of record, but with a failure to comply with a jurisdictional requirement. This distinction is emphasized in Haynes v. Los Angeles R. R. Corp., 80 Cal. App. 776 , 780 [ 252 Pac. 1072 ]: “The rule is well settled in this state that every court of record has the inherent power to correct its records so that they shall conform to the facts and speak the truth . . . (citing eases). It is equally well established that the court in the exercise of this power is not authorized to do more than to make its records conform to the actual facts, and cannot under the form of an amendment of its records, correct a judicial error, or make of record an' order or judgment that was never, in fact, given . . . (citing cases).” The record before us discloses that no written order granting a new trial on the ground of the insufficiency of the evidence was made within the time in which the court was empowered to act, and a nunc pro tunc entry cannot create an order where one did not exist before. “A determination by the judge that his failure to put his order in writing was a clerical error is not of sufficient potency to out

The entry of the minute order on May 28, 1940, did not satisfy the requirement that a written order specifying the insufficiency of the evidence be filed within ten days after the motion is granted. The entry which the clerk makes in his records is a synopsis merely of the court’s order, tantamount to a history of it (18 Cal. Jur. 663; Bailey v. Superior Court, 215 Cal. 548 [ 11 Pac. (2d) 865 ]), and before the amendment of 1939, this record clearly was sufficient compliance with the provisions of section 657, subdivision 7 (Pol. Code, sec. 4178, subd. 3). Again referring to Thomas v. Driscoll, supra, we find at page 26 the following analysis of legislative intent as indicated by the change in the statutory language: “ . . . Unless something more than a mere minute entry is required that part of the amendment providing for a written order is meaningless. That the order should be written and ‘filed with the clerk’ is definitely intended is manifest from the provision that ‘the court may direct a party to prepare the order’. Since the legislature could not have intended that a party should prepare a minute entry, and since the order shall be filed with the clerk’ it is clear that the amendment requires an order in writing other than a minute entry by the clerk.”

There is no merit to respondent’s contention that if the ten day limitation be construed as a jurisdictional period, the statute is unconstitutional because it would operate to deprive the defendants in the original personal injury action here of valuable property rights—adjudication upon the sufficiency of the evidence—without due process. There is no constitutional right to a new trial. The general rule is stated in 12 American Jurisprudence, Constitutional Law, section 637, page 327: “A hearing before judgment, with full opportunity to present all the evidence and the arguments which the party deems important, is all that can be adjudged vital under the guaranty of due process of law. Rehearings or new trials are not essential to due process of law, either in judicial or administrative proceedings. One hearing, if ample, before judgment satisfies the demand of the Federal

The above considerations impel the conclusion that the legislature by its amendment to section 657, Code of Civil Procedure, subdivision 7, intended to make it mandatory that a written order granting a new trial on the ground of the insufficiency of the evidence to sustain the verdict or decision be filed within ten days after the motion is granted or not at all, and that this time limitation applies to nunc pro tunc orders as well as to original orders made pursuant to this statutory provision.

Finally, as an objection to a determination of the validity of these nunc pro tunc orders, respondent urges the point that a writ of review is not a proper proceeding in this case, as petitioner has her remedy by appeal. Respondent here calls attention to the general rule that certiorari may not be used as a substitute for appeal (4 Cal. Jur. 1052). But it is likewise well recognized that an order which is not provided for in our procedure is not an. appealable order within the meaning of section 1068, Code of Civil Procedure, and an application for a writ of review is the proper remedy. (Treat v. Superior Court, 7 Cal. (2d) 636 [ 62 Pac. (2d) 147 ]; Stanton v. Superior Court, 202 Cal. 478 [ 261 Pac. 1001 ]; Diamond v. Superior Court, 189 Cal. 732 [ 210 Pac. 36 ]; Quevedo v. Superior Court, 131 Cal. App. 698 [ 21 Pac. (2d) 998 ]; Holquin v. Allison, 97 Cal. App. 126 [ 274 Pac. 1037 ].) When a statute prescribes a definite procedure and the court acts contrary to the authority thus conferred, it has exceeded its jurisdiction and certiorari will lie to correct such excess. (Rodman v. Superior Court, 13 Cal. (2d) 262 [ 89 Pac. (2d) 109 ].)

Shenk, J., Traynor, J., Edmonds, J., and Carter, J., concurred.