Pashgian v. Stephenson — 10 Cal. App. 36

Majority

p. 36

[Civ. No. 563.

Second Appellate District.

February 5, 1909.]

JOHN S. PASHGIAN, Appellant, v. S. B. STEPHENSON, Respondent.

Headnote

Appeal from Judgment—New Findings and Judgment—Jurisdiction of Trial Court.—After an appeal from the judgment has been perfected and is pending in this court, the court below was without jurisdiction to file a new set of findings and conclusions of law, and to render another judgment in the same proceeding in favor of the respondent, where the record does not show that any motion for a new trial was filed, or any order made in reference thereto, and such new judgment must be reversed upon appeal therefrom.

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Id.—Subsequent Dismissal of First Appeal—Power of Trial Court not Affected.—The fact that, subsequently to the rendition of the new findings and judgment, the appellant dismissed his appeal from the former judgment, cannot affect the question involving the power of the trial court to render the same while such former appeal was actually pending.

APPEAL from a judgment of the Superior Court of Imperial County. Franklin J. Cole, Judge.

The facts are stated in the opinion of the court.

John M. Eshleman, M. W. Conkling, Conkling & Brown, and Eshleman & Swing, for Appellant.

F. C. Farr, for Respondent.

Appeal by plaintiff upon a bill of exceptions from a judgment rendered in defendant’s favor.

The action was one for forcible entry and detainer. The court below tried the case on the thirtieth day of October, 1907, and on such date rendered judgment in favor of defendant and against plaintiff. On February 28, 1908, plaintiff gave notice of appeal from such judgment, and on the third day of March following filed his undertaking on appeal. There is nothing in the record indicating that any motion for a new trial was filed, or any order made in reference thereto, notwithstanding which the court, on May 15, 1908, against plaintiff’s objections, signed and filed in said action another set of findings and conclusions of law and rendered another judgment in the same proceeding in defendant’s favor and against plaintiff. From this last judgment plaintiff also appeals. The appellant has dismissed his first appeal and nothing remains for consideration but the appeal from the judgment of May 15, 1908.

It is conceded by both parties, and very properly so, that the court below was without jurisdiction to file additional findings or render any judgment thereon after the appeal from the first judgment was perfected and pending in this court. The fact that the appeal which terminated the jurisdiction of the trial court has since been dismissed does not in any wise affect the question involving the power of the

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trial court t'o act in the manner stated while such appeal was actually pending.

The judgment made and entered on May 15, 1908, is therefore reversed, with costs to appellant.

Shaw, J., and Taggart, J., concurred.