Hyperlawhypertext legal databasebeta Gulf Mail Steamship Co. v. W. A. Hammond Steamship Co. 67 Cal. App. 420

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Gulf Mail Steamship Co. v. W. A. Hammond Steamship Co.

67 Cal. App. 420 Court First Appellate District, Division One. Decision date 1924-05-23 Docket Civ. No. 4891 English

Delivered by ST. SURE, J.

Contents

Majority

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[Civ. No. 4891.
First Appellate District, Division One.
May 23, 1924.]
GULF MAIL STEAMSHIP CO. (a Corporation), Appellant, v. W. A. HAMMOND STEAMSHIP COMPANY (a Corporation), Respondent.

Headnote

[1] Appeal — Recertification of Transcript — Notice—-Motion to Affirm Judgment—Denial of.—A respondent is not affected in any of his substantial rights by the failure of an appellant to give due notice of recertification of a transcript, which originally omitted the notice of appeal, where the transcript, as recertified, is, with the exception of the inclusion of the notice of appeal, the same; and a motion to- affirm the judgment appealed from, coming as it does, after the transcript has been certified by the trial judge, and filed in the appellate court, must be denied and the appeal considered upon its merits.
[2] Id.—Transcript—-Omission of Notice of Appeal—Diminution of Record.—The -omission of the notice of appeal, even though the transcript had been filed, might have been thereafter, in the interests of justice, supplied upon suggestion in- the appellate court of diminution of record.
[3] Courts—Granting New Trial—Written Order by Judge—Minute Entry by Olerk—Omission of Grounds Stated in Order— Nunc Pro Tuno Order—Jurisdiction.—A written order signed
1. See 2 Cal. Jur. 597.
2. See 2 Cal. Jur. 677, 680; 2 E. O. L. 154.
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ami filed by a trial judge having specified that a new trial was granted upon the grounds of the insufficiency of the evidence to sustain the verdict, and that the verdict was against law, and the contemporaneous minute entry of such order by the clerk having failed to show the grounds upon which the new trial was granted, the trial court was authorized to make an order amending nunc pro tuno the original minute order entered by the clerk so as to make it show the grounds upon which the new trial was granted.
[4] Id.—Clerical Errors—Correction op — Time ■—■ Jurisdiction. — Courts have inherent power over their records, and may at all times correct mere clerical errors made by the clerk in entering the order in the minutes^ so that it may truly state what was the order of the court, by setting forth all its terms. Such errors or defects may be corrected at any time by the court, on its own motion, or on motion of either party.
(1) 4 C. J., p. 499, sec. 2254, p. 1126, see. 3115. (2) 4 C. J., p. 508, sec. 2269, p. 509, sec. 2271. (3) 29 Cyc., p. 1027. (4) 15 C. J., p. 974, sec. 392, p. 975, sec. 395, p. 976, see. 395, p. 977, sees. 396, 397, p. 978, sec. 397.
4. Power of trial court to correct its record after an appeal or writ of error, note, 31 L. R. A. (N. S.) 207 . See, also, 7 Cal. Jur. 613; 7 R. C. L. 1019.
APPEAL from an order of the Superior Court of the City and County of San Francisco amending nunc pro tunc a previous order granting a new trial. Franklin A. Griffin, Judge. Affirmed.
The facts are stated in the opinion of the court.
H. W. Glensor, Aitken, Glensor, Clewe & Van Dine and Frank W. Aitken for Appellant.
Nathan H. Frank, Irving H. Frank and Keith Ferguson for Respondent,

This is an appeal from an order of the superior court amending nunc pro tunc a previous order granting a new trial.

[1] After the transcript, certified by the clerk and by the trial judge, had been filed in this court, respondent made herein a motion for affirmance of the judgment upon technical grounds. It appears that appeal was taken in due time (sec. 953a, Code Civ. Proc.), transcript prepared and

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filed, and notice given of presentation of transcript to the trial judge for approval. The trial judge approved the transcript on January 3d. Thereafter appellant discovered that through inadvertence notice of appeal had been omitted from the transcript, and without further notice to respondent appellant inserted in the transcript the notice of appeal, and procured from the trial judge and clerk new certifications dated January 9th. Respondent complains that failure to give due notice of such recertification invalidated the whole procedure. We fail to see wherein any substantial right of respondent was affected. The transcript, recertified, was, with the exception of the inclusion of the notice of appeal, the same. Admittedly, appeal had been properly taken. [2] The omission of the notice of appeal, even though the transcript had been filed, might have been thereafter, in the interests of justice, supplied upon suggestion in this court of diminution of record. Furthermore, the motion to affirm, coming as it does, after the transcript had been certified by the trial judge, and filed in this court, must be denied and the appeal considered upon its merits. (Revert v. Hesse, 184 Cal. 295 [ 193 Pac. 943 ]; White v. Hendley, 35 Cal. App. 267 , 270 [ 169 Pac. 710 ].)

[3] As to the merits, the record shows that Judge John Hunt, presiding in department 5 of the superior court, granted a motion for a new trial. The clerk of the court entered a minute order thereof as follows: “The motion for a new trial having been heretofore submitted to the court for decision, and the court having fully considered the same, it is ordered that the said motion be, and the same is, hereby granted. ‘Opinion filed.’ ” While an appeal was pending, respondent herein applied to the superior court for an order amending nunc pro tune the original order above quoted. The motion was regularly heard and granted by the lower court, and an amendatory order entered as follows: “The motion for a new trial having been heretofore submitted to the court for decision, and the court having fully considered the same, it is ordered that the said motion be, and the same is, hereby granted upon the grounds of the insufficiency of the evidence to sustain the verdict, and that the verdict is against law.” This entry was based upon an order made by Honorable Franklin A. Griffin, the then presiding judge of department 5, which reads, in part, as follows: “It appearing from the records of this court that on the fourth

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day of November, 1919, Honorable John Hunt then and there a judge of this court, granted the defendant’s motion for a new trial upon the grounds that the verdict is against law and of the insufficiency of the evidence to justify the verdict; and it appearing that the clerk of the court omitted to recite in said minute order that the defendant’s motion for a new trial was granted upon said grounds, including that of insufficiency of the evidence to justify the verdict, it is ordered,” etc.

In the original minute order mention is made of an ‘ ‘ opinion filed. ’ ’ This ‘ ‘ opinion, ’ ’ correctly entitled, is signed by the trial judge. It bears the same date as the entry of the original minute order made by the clerk. It was “filed in open court.” Its context shows conclusively that the motion for a new trial was granted upon the grounds of the insufficiency of the evidence to sustain the verdict, and that the verdict was against law.

An examination of this so-called “opinion” convinces us that it rises to the dignity of a written order signed and filed by the trial judge; while it contains language giving the reasons of the trial judge for making the order, with which reasons we are not concerned (Unger v. San Francisco-Oakland Terminal Rys. et al., 61 Cal. App. 125 [ 214 Pac. 510 , 515]), it shows indubitably that the motion for a new trial was granted upon the grounds above stated, and concludes with the words “for these reasons I am constrained to grant defendant’s motion for a new trial herein, and it is so ordered.” Section 657 of the Code of Civil Procedure provides when a new trial may be granted, and further provides that “when a new trial is granted upon the ground of the insufficiency of the evidence to sustain the verdict, the order shall so specify.” It is clear that Judge Hunt so specified in the order made by him, and it follows that the contemporaneous minute entry made by the clerk was erroneous. [4] Courts have inherent power over their records, and may at all times correct mere clerical errors made by the clerk in entering the order in the minutes, so that it may truly state what was the order of the court, by setting forth all its terms. As was said in Crim v. Kessing, 89 Cal. 478 , 486 [ 23 Am. St. Rep. 491 , 26 Pac. 1074 ], “The right of a court of general jurisdiction to amend or correct its records so that they shall speak the truth, is too well recognized to need any argument.” Such errors or defects may

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be corrected at any time by the court, on its own motion, or on motion of either party. (Brush v. Pacific Electric Ry. Co., 58 Cal. App. 501 [ 208 Pac. 997 ].) The order amending nunc pro tunc the previous order granting the motion for a new trial, was properly made and is, therefore, affirmed.

Tyler, P. J., and Knight, J., concurred.

A petition by appellant to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on July 17, 1924.

All the Justices concurred.

Cases cited

Statutes and regulations cited