Ruiz v. Ruiz

Plaintiffs brought an action for cancellation of their grant deed conveying real property to defendants alleging as grounds therefor, fraud (both misrepresentation and concealment), undue influence and mistake. They also sought punitive damages. The action was tried by a jury which rendered a general verdict in favor of plaintiffs and against defendants. The jury also made findings of fact on issues submitted to it by the court. The jury’s findings indicated that mistake was the sole ground for cancellation of the deed, that upon cancellation plaintiffs should pay defendants $1,449.94, and that there was no basis for an award of punitive damages. Approximately a month after rendition of the verdict and the jury’s findings, the court made an “order re judgment.”^[2] In that order the court determined that the action as pleaded and tried was an action in equity and therefore the jury’s findings were merely advisory;^[3] however, the court indicated that it would accept the findings and directed counsel for plaintiffs to prepare a judgment cancelling the deed on condition that plaintiffs pay defendants $1,449.94. Defendants requested findings of fact and conclusions of law. (Code Civ. Proc., § 632.) In response to that request the court directed counsel for plaintiffs to prepare proposed findings and conclusions “in accordance with the findings of fact of the jury.” Counsel for plaintiffs prepared proposed findings of fact and conclusions of law which were served on defendants and submitted to the court, but were not signed and filed. In this posture of the case, the findings and conclusions being unsigned and unfilled, defendants filed notice of intention to move for a new trial. Following a hearing, the court granted the motion.

Plaintiffs contend that the notice of intention to move for a new trial was premature and the court therefore was without jurisdiction to hear and determine the motion. We agree.

A new trial is defined as “a re-examination of an issue of fact in the same court after a trial and decision by a jury, court, or referee.” (Code Civ. Proc., § 656; italics added.) Under section 657 of the Code of Civil Procedure a “verdict may be vacated and any other decision may be modified or vacated” upon application for a new trial made by any “party aggrieved.” Until there has been a decision there is no aggrieved party. (Root v. Daugherty (1927) 201 Cal. 12 , 14-15 [ 255 P. 181 ].) Accordingly, a notice of intention to move for a new trial is premature if given before there is a decision in the case. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450 , 459 [ 20 Cal.Rptr. 321 , 369 P.2d 937 ].) The decision is the rendition of judgment by the verdict of the jury or the signed and filed findings of fact and conclusions of law of the court.^[4] (Id., at p. 460; 5 Witkin, Cal. Procedure (2d ed. 1971) Attack on Judgment in Trial Court, § 52, p. 3628.) Unless waived, findings must be made in an equity case tried with the aid of a jury. (Holland v. Kelly (1917) 177 Cal. 43 , 45 [ 169 P. 1000 ].) A general verdict rendered by the jury is insufficient and should be disregarded; even a special verdict is only advisory to the court and may be rejected or adopted by it. (Warring v. Freear (1883) 64 Cal.54, 56 [ 28 P. 115 ].) “In equity cases the findings of the jury are merely advisory. A case has not been tried until all the issues have been disposed of, and there has been no decision until the court has passed upon the facts and drawn its conclusions of law therefrom.” (Bell v. Marsh (1889) 80 Cal. 411 , 414 [ 22 P. 170 ]; original italics.) The findings of the jury being merely advisory, findings by the court are necessary. (Vallejo etc. R. R. Co. v. Reed Orchard Co. (1915) 169 Cal. 545 , 556 [ 147 P. 238 ]; Lenard v. Edmonds (1957) 151 Cal.App.2d 764 , 771 [ 312 P.2d 308 ]; Brichetto v. Raney (1926) 76 Cal.App. 232 , 241 [ 245 P. 235 ].) As stated in De Arellanes v. Arellanes (1907) 151 Cal. 443 , 449 [ 90 P. 1059 ]; “In actions of this character a party is not entitled to a jury as a matter of right, and if a jury be called in it simply acts in an advisory capacity, the court being compelled to make findings of its own, and in so doing it is free to adopt or reject the findings of the jury as it deems proper.” In the present case the court, although it indicated its intention to adopt the jury’s findings, did not do so by making its own findings. It follows that there was no decision in the case and defendants’ notice of intention to move for a new trial therefore was premature.

The timely filing of such a notice is essential to the court’s jurisdiction to entertain a motion for new trial. (Fong Chuck v. Chin Po Foon (1947) 29 Cal.2d 552 , 553-554 [ 176 P.2d 705 ]; Tabor v. Superior Court (1946) 28 Cal.2d 505 , 507-508 [ 170 P.2d 667 ].) Proceedings for a new trial taken prematurely are ineffective for any purpose, and it is not within the power of the litigants to invest' the court with jurisdiction to hear and determine the motion by consent, waiver, agreement or acquiescence. (Tabor v. Superior Court, supra, 28 Cal.2d at p. 507; City of Santa Barbara v. Superior Court (1966) 240 Cal.App.2d 612 , 614 [ 49 Cal.Rptr. 798 ].) Accordingly, the court was without jurisdiction to make its order granting defendants’ motion for new trial. Such order therefore is void and of no force and effect as completely as if never entered.^[5] (Peters v. Anderson (1931) 113 Cal.App. 158 , 160 [ 298 P. 76 ].)

The order is reversed.

Hanson (Thaxton), J., and Schwartz,^[6] concurred.

Respondents’ petition for a hearing by the Supreme Court was denied June 4, 1980.