Rosslow v. Janssen

Motion to dismiss appeal. From the record it appears that on August 3, 1933', a jury rendered a verdict in the above-entitled action in favor of plaintiff and against the defendant in the sum of $8,000 and costs. The action was one brought under the provisions of section 29 (b) of the Workmen’s Compensation Act for damages for personal injuries and for attorneys’ fees as provided for under the act. Entry of judgment upon the verdict was stayed by the trial court pending its disposition of defendant’s motion for judgment notwithstanding the verdict. Thereafter, on August 14, 1933, defendant served and filed his notice of intention to move for a new trial. On September 11,

It is appellant’s contention that his time for appeal has not elapsed, for the reason that as no finding has ever been made by the court as to the reasonableness of the attorneys’ fees, there has never been any judgment thereon, or at least not until October 5, 1933, the date of the nunc pro tunc order, if such order can be considered a finding. The same argument is presented in relation to the original motion for a new trial, it being claimed in this connection that as no proper judgment had been rendered at the time the notice was given it was premature and ineffectual and did not limit the time for appeal.

The trial court’s order allowing plaintiff attorneys’ fees was made and entered in the minutes simultaneously with the denial of defendant’s motion for judgment notwithstanding the verdict on September 11, 1933. Judgment was incorrectly entered as above indicated. The judgment rendered constituted a single judgment. The attorneys’ fees were an incident thereto, and the court had power to determine what were reasonable attorneys’ fees without hearing any testimony upon the subject, and an express finding was unnecessary (Huber v. Shedoudy, 180 Cal. 311 , 314 [ 181 Pac. 63 ]). This judgment, however, was not complete or effective until properly entered. When there is a jury trial as to some issues and a court trial on remaining issues, an entry of judgment on a previous verdict is premature and unauthorized. A party is entitled to have judgment entered immediately upon a decision or return of a verdict only when such verdict disposes of the entire case. (34 Cor. Jur. 62, 63; Estate of McKenna, 138 Cal. 439 , 440 [ 71 Pac. 501 ]; Reclamation District v. Thisby, 131 Cal. 572 , 574 [ 63 Pac. 918 ].) The statute did not begin to run until after the proper entry was made, since it was not a final judgment until then. (Crim v. Kessing, 89 Cal. 478 [ 26 Pac. 1074 , 23 Am. St. Rep. 491 ]; Coon v. Grand Lodge, 76 Cal. 354 [ 18 Pac. 384 ]; 2 Hayne on New Trial and Appeal, see. 204.) Proper entry was not had until October 5, 1933, the date when the order nunc pro tunc was made. This was the actual date of the entry. A court cannot, by antedating an order or the entry of it, cut off the right of a party to an appeal. This right given by the code is not

Where an action embraces several issues, some of which are tried by the court and some by the jury, a notice of intention to move for a new trial, served and filed after the verdict on the issues submitted to the jury, but before the decision on the issues vtried by the court, is premature and of no effect and does not in any manner control the time within which an appeal may be taken. (Barnes v. Foley, 189 Cal. 226 [ 207 Pac. 885 ].)

For the reasons given, the motion to dismiss the appeal is denied.

Knight, J., and Cashin, J., concurred.

A petition for a rehearing of this cause was denied by the District Court of Appeal on February 28, 1934, and an application by respondent to have the cause heard in the Supreme Court, after judgment in the District Court of Appeal, was denied by the Supreme Court on March 29, 1934.