Crawford v. Meadows

This is an appeal from a judgment entered-in favor of plaintiff, and from orders denying defendant’s motions for relief from default in preparing her record for use on appeal.

It appears that this action in claim and delivery was originally brought against Mobley Meadows as sheriff of Imperial County. An answer was filed, and upon the issues so joined a trial was had, which resulted in a judgment for defendant, from which plaintiff appealed, as a result of which the judgment was reversed. Meanwhile Meadows had died and Rebecca J. Meadows was appointed administratrix of his estate. Thereupon in due time plaintiff, in accordance with the statute, duly presented to her as such administratrix a demand for the delivery to him of an automobile made the subject of the claim and action then pending. Thereupon she, as such administratrix, was substituted as defendant, and a supplemental complaint was filed, setting forth the facts upon which plaintiff based his claim to the property, together with other matters which, under the circumstances, were proper in a supplemental complaint. To this complaint defendant filed a general demurrer, which was overruled. Thereupon defendant answered the same, wherein, in addition to denials, she alleged a number of separate defenses to plaintiff’s cause of action. The case was tried by a jury, which rendered a verdict in favor of the plaintiff, fixing the value of the automobile constituting the subject of the action at the sum of two thousand two hundred dollars, together with interest thereon from February 5, 1915, the date of the taking. Following this verdict, judgment was entered by the clerk on May 13, 1920. A motion for a new trial, made by defendant, was denied by operation of law on August 13, 1920.

In entering the original judgment on May 13, 1920, the clerk failed to comply with the directions contained in section 667 of the Code of Civil Procedure, wherein provision is made for the entry of judgment in such cases in the alternative form. Nor did it provide that payment should be made by defendant as administratrix in due course of administration of the estate of Mobley Meadows, deceased,' in accordance with the provisions of section 1504 of the Code of Civil Procedure.

Thereafter, to wit, on November 12, 1920, upon motion of plaintiff, the court made an order pursuant to which the judgment was amended nunc pro tunc as of date May 13, 1920, when originally entered. The amendments consisted of a compliance with the provisions of the statute requiring the judgment in such cases to be in the alternative form, so that as amended it provided for the recovery by plaintiff of the automobile and damages, and in case a delivery could not be had of the property that plaintiff should recover the value thereof, with interest, payment of which should be made by said administratrix out of the estate of Mobley Meadows, deceased, in due course of administration.

Thereafter, to wit, on November 23, 1920, the defendant filed with the clerk of said court a notice that she intended to appeal from the judgment as amended, and requested that a transcript of the proceedings be prepared in accordance with the provisions of section 953a of the Code of Civil Procedure. Whether or not such transcript was ever prepared and presented for authentication is not disclosed by the record. It does appear, however, that on December 17, 1920, defendant, correctly or erroneously assuming that her' time for so doing had expired, and upon notice supported by the affidavit of her counsel, moved the court for an order relieving her from default in filing with the clerk noticemf defendant’s intention to appeal from the judgment entered against defendant on May 13, 1920, and requesting

Thereafter, on December 31, 1920, defendant filed two notices of appeal, one of which was directed “to the plaintiff and to the clerk of said court,” and the other “to the plaintiff and to his attorneys,” in both of which she gave notice of an appeal to the supreme court from the judgment as amended by order of court on November 12, 1920, and also from the orders of the.court denying her motions for relief from default made on December 17, 1920.

There was no abuse of discretion on the part of the court in denying the motions that defendant be relieved from her default due to her failure within the time allowed by law therefor to prepare and present for authentication a record to be used on appeal, without which the orders should not be disturbed by this court. The affidavit, dated December 6, 1920, of defendant’s attorney in support of the motions is barren of any facts which even tend to show excusable neglect or mistake on the part of defendant. Other than the statement that on November 23, 1920, her counsel filed with the clerk of the court a notice that defendant intended to appeal, and requesting the preparation of a transcript of the proceedings at the trial, as provided in section 953a of the Code of Civil Procedure, all of the statements therein relate to the motion theretofore made for a new trial and to matters occurring prior to the entry of the amended judgment made on November 12, 1920, and from which this appeal is prosecuted. While it appears

We are thus brought to the appeal from the judgment, which in the absence of instructions given by the court to the jury and the evidence adduced at the trial must be considered on the judgment-roll alone. Contrary to respondent’s contention, we shall, without so deciding, assume the time for taking the appeal commenced from the entry of the judgment as amended on November 12, 1920, rather than, as he claims, from the time of the entry of the original judgment on May 13, 1920, from which last judgment it appears that an appeal was taken and thereafter dismissed by the supreme court.

Appellant suggests, without mr.king any argument thereon, that the court erred in overruling her general demurrer to the supplemental complaint. There was no error in so doing. While in form the complaint may have been objectionable, it is sufficient in substance, and defects, if any, therein could not be reached by a general demurrer. Neither was it objectionable in that, as claimed, it added

[2] The verdict of the jury was: “We the jury in the above entitled action find for the plaintiff and find he is entitled to the return of the automobile described in the complaint, and find the value thereof to be the sum of $2200.00, together with interest thereon from Feb. 5, 1915, at 7% per annum.” Appellant insists that such verdict is not in accordance with section 627 of the Code of Civil Procedure, in that it is indefinite and uncertain, and hence constituted no basis for the judgment, as amended, entered thereon. That the verdict was sufficient in finding that plaintiff was entitled to the return of the automobile and as to the value thereof admits of no doubt, and hence is not uncertain either as to plaintiff’s right or the value of the property in the event that delivery could not be had. Nor is there merit in the contention that there is an absence of any finding as to damages for the detention of the property. In Tucker v. Hagerty, 37 Cal. App. 789 [ 174 Pac. 908 ], it is said: “In an action for the wrongful detention of property, the ordinary measure of damages is interest, but where the property has a usable value which exceeds the lawful rate of interest, such rule has no application.”

A number of separate defenses were set up in the answer of defendant, which the jury by its implied finding decided adversely to her. In the absence of instructions given or any evidence offered, we must assume there "was no error in the trial which affected the verdict.

The judgment and orders appealed from are affirmed. -

Conrey, P. J., and James, J., concurred.

A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on December 30, 1921, and the following opinion then rendered thereon:

THE COURT.—The petition for a rehearing of this cause in the supreme court after decision by the district court of appeal of the second appellate district, division one, is denied.

The defendant insists that the district court failed to consider at all her objection that the court had no power or jurisdiction to make an order amending the judgment as entered on May 13, 1920, nunc pro tunc, while the appeal therefrom was pending, so as to make it conform to the

[3] In support of this point she cites Kinard v. Jordan, 175 Cal. 13 [ 164 Pac. 894 ], and other cases to the effect that when an appeal is taken the entire cause is removed to the appellate court, so that the lower court has no jurisdiction thereafter until after the appeal has terminated to take any proceeding in the cause. These decisions are correct so far as they refer to orders which in some respect alter the judgment appealed from as actually rendered. The superior court, pending the appeal, has no power to vacate the judgment or materially alter it so as to make it different from the judgment as actually rendered. But this rule does not affect the power of the court to correct its own records nunc pro tunc so as to make its record state what actually occurred.

[4] The action in this case was in claim and delivery under the code. The verdict of the jury was that the plaintiff was entitled to the return of the property and that its value was two thousand two hundred dollars, with interest, as damages, in accordance with section 627 of the Code of Civil Procedure. The judgment actually rendered was in accordance with this verdict and it should have been entered in that form. In attempting to enter it, however, the clerk, by a mistake that is perfectly apparent from the previous proceedings shown in the record, entered a simple judgment for the recovery of the property and the accrued interest, and failed to enter the judgment as actually rendered, that is, a judgment for the possession of the property, or for its value in case a delivery of the possession could not be had, and for the"interest as damages. The subsequent entry nunc pro tunc was not the entry of a new judgment different from that already rendered, or the vacation of the previous judgment, as was the order entered in Kinard v. Jordan, supra. It was the entry of the judgment as actually rendered on May 13, 1920, and a correction of the clerical error of the clerk in the original entry. The pendency of an appeal does not destroy the power of a court to make such correction of its record when the mistake is obvious from the other parts of the record and the proper correction can be made therefrom. In Fay v. Stubenrauch, 141 Cal. 575 [ 75 Pac. 174 ], the court said: “Nor

Shaw, C. J., Lennon, J., Wilbur, J., Shurtleff, J., Sloane, 'J., Waste, J., and Richards, J., pro tern., concurred.