Bice v. Stevens

• Decision Date: 07 May 1958
• Citation: 160 Cal.App.2d 222,325 P.2d 244
• Court: California Court of Appeals Court of Appeals
• Parties: Richard J. BICE and Leila M. Bice, Plaintiffs and Appellants, v. James STEVENS and Mabel Stevens (husband and wife), William F. Thompson, Earl L. Morrison and Florence E. Morrison (husband and wife), Earl L. Morrison and Florence E. Morrison, doing business under the fictitious firm name and style of Keystone Realty Company, Roland W. Hoagland, and Farmers and Merchants Bank of Long Beach, California, a Corporation, Defendants, James Stevens and Mabel Stevens (husband and wife), The Estate of William .f. Thompson, deceased, Earl L. Morrison and Florence E. Morrison (husband and wife), and Roland W. Hoagland, Respondents. Civ. 22567.

Page 244

325 P.2d 244

160 Cal.App.2d 222

Richard J. BICE and Leila M. Bice, Plaintiffs and Appellants, v. James STEVENS and Mabel Stevens (husband and wife), William F. Thompson, Earl L. Morrison and Florence E. Morrison (husband and wife), Earl L. Morrison and Florence E. Morrison, doing business under the fictitious firm name and style of Keystone Realty Company, Roland W. Hoagland, and Farmers and Merchants Bank of Long Beach, California, a Corporation, Defendants James Stevens and Mabel Stevens (husband and wife), The Estate of William .f. Thompson, deceased, Earl L. Morrison and Florence E. Morrison (husband and wife), and Roland W. Hoagland, Respondents.

Civ. 22567.

District Court of Appeal, Second District, Division 3, California.

May 7, 1958.

Hearing Denied July 2, 1958.

Donald P. Lane, Long Beach, for appellants.

Dolley, Jessen & Painter and Louis Miller, Los Angeles, for respondents James Stevens and Mabel Stevens.

Harry E. Templeton, Los Angeles, for respondents Earl L. Morrison and others.

VALLEE, Justice.

Plaintiffs have appealed from two orders denying their motions made under section 473 of the Code of Civil Procedure: one motion for an order setting aside a judgment of dismissal with prejudice as to one defendant and for other relief, the other motion for an order setting aside in part and amending the judgment of dismissal.

The action was commenced on November 9, 1949 by plaintiffs for damages for fraud in the exchange of real properties. The cause went to trial; defendants' objections to the introduction of evidence were sustained; and judgment for defendants entered. On plaintiffs' appeal the judgment was reversed as to all defendants except a bank. Bice v. Stevens, 136 Cal.App.2d 368, 289 P.2d 95.

William F. Thompson, one of the defendants, died prior to the reversal. His estate was in probate in the Superior Court of the City and County of San Francisco. Homer A. Thompson was the duly appointed administrator of the estate. Mr. Emory Morris of San Francisco was one of the attorneys for the administrator. The administrator had not been substituted as a defendant in place of the deceased.

The cause was again set for trial for May 7, 1956 in Department A. When it was called, Mr. Poppler, attorney for plaintiffs, answered 'Ready' and stated he was dismissing with prejudice as to 'defendant William F. Thompson and his heirs and administrator.' Thereupon the court dismissed the action as to 'William F. Thompson and administrators' and transferred the cause for trial to Department D.

In Department D, at the suggestion of the court, plaintiffs amended the complaint to allege damages of $58,200. The remaining defendants then moved for permission to amend their answers to plead a defense of retraxit. The motions were granted and the trial was reset for September 24, 1956. The answers were amended accordingly.

On June 22, 1956 plaintiffs filed a motion for an order setting aside the judgment of dismissal with prejudice and for a further order permitting plaintiffs to proceed against the remaining defendants; in the alternative, to amend the motion for dismissal with prejudice to exclude acceptance of any consideration for the dismissal. The grounds of the motion were that the motion for dismissal with prejudice was made by mistake, inadvertence, excusable neglect, and without authority from the plaintiffs. The motion was denied on July 26, 1956. The court then granted motions of defendants for trial on the special defenses of retraxit and reset the cause for trial for January 7, 1957.

On September 13, 1956 plaintiffs filed a second motion for an order setting aside in part and amending the judgment of dismissal so that the words 'with prejudice' were stricken therefrom and the words 'without prejudice' substituted therefor. The grounds of the motion were mistake, mistake of law, surprise, inadvertence, excusable neglect, and want of any authority from plaintiffs. This motion was denied on October 18, 1956.

On December 12, 1956 plaintiffs filed a single document in which they appealed from the order of July 26, 1956 denying their first motion, and from the order of October 18, 1956 denying their second motion.

The order of July 26, 1956 denying the first motion was appealable. (3 Witkin, California Procedure, 2172, § 26.) The appeal from that order was not filed within 60 days from the date of entry of the order. This court is without jurisdiction of that appeal and it must be dismissed. Rules on Appeal, Rule 2.

Defendants assert the order of October 18, 1956 denying the second motion is not appealable because that motion, they say, is substantially a repetition of the first motion to vacate and is based on grounds which were in existence and considered by the trial court in ruling on the first motion.

The former general rule permitted only one motion under section 473 of the Code of Civil Procedure, and once the court ruled on such motion its power with respect to the judgment ceased. The basis for the rule was that to permit a renewal after a previous denial would result in uncertainty as to the status of the judgment; that if a trial court could vacate one denial, why not a second, a third, ad infinitum? It was said that in the interests of expeditious handling of litigation there should be a definite limitation on the power of the trial court to set aside its own orders. (See cases collected 30 Cal.L.Rev. 74.) However, the rule fell with Harth v. Ten Eyck, 16 Cal.2d 829, 108 P.2d 675, in which the court held, on facts similar to those at bar, that where the trial court considered a second motion under section 473 to set aside a dismissal with prejudice as to one defendant as a renewal to set aside its previous order of denial, the order granting the second motion was tantamount to permission to renew the motion to set aside, and it was appealable. Also see Harth v. Ten Eyck, 12 Cal.2d 709, 87 P.2d 693; Imperial Beverage Co. v. Superior Court, 24 Cal.2d 627, 634, 150 P.2d 881; Beyerbach v. Juno Oil Co., 42 Cal.2d 11, 29, 265 P.2d 1; Hover v. MacKenzie, 122 Cal.App.2d 852, 857, 266 P.2d 60; Stephens v. Baker & Baker Roofing Co., 130 Cal.App.2d 765, 773, 280 P.2d 39; Dahlin v. Moon, 141 Cal.App.2d 1, 4, 296 P.2d 344. We hold the order of October 18, 1956 denying the second motion is appealable.

The question is: Did the court abuse its discretion in denying the second motion? This motion was supported by affidavits of plaintiffs. The parties stipulated that the affidavits and depositions of plaintiffs and their attorneys filed in connection with the first motion could be used and introduced in evidence and considered by the court in ruling on the second motion. The entire file, together with all affidavits and depositions, was received in evidence at the hearing.

The trial was originally set for May 7, 1956. On April 13, 1956 Mr. Morris wrote Mr. Poppler, one of plaintiffs' then attorneys, that he was unable to obtain any information concerning the litigation that the net estate of the decedent Thompson was nominal; that there were two alternatives facing the administrator: either the estate used up its assets in defending the action or to request a covenant not to sue from plaintiffs; and that the action could not go to trial until the administrator had been substituted. On May 4 Mr. Morris, not having heard from Mr. Poppler, telephoned him and arranged to meet him on May 5.

On May 5 Mr. Morris met with Mr. Poppler. Mr. Morris asked for a complete clearance of the estate either by a covenant not to sue or by a dismissal with prejudice. Mr. Poppler stated that for a payment of $25 a dismissal with prejudice would be entered on May 7 when the case was called for trial. Mr. Morris accepted the offer and gave Mr. Poppler $25 in cash. Mr. Poppler gave Mr. Morris a writing dated May 5, 1956 stating, 'This note is to assure you that, in consideration for $25.00, I will cause to have my clients file a dismissal with prejudice as to William F. Thompson Deceased and his heirs and representatives in the case of Bice v. Stevens LBC 16190 when the same is called for trial Monday, May 7, 1956 in Dep't Long Beach A,' and acknowledged receipt of the $25. Plaintiffs were not present at the meeting between Mr. Poppler and Mr. Morris.

On May 7, when the action was called for trial in Department A, in response to a question by the court as to whether it was at issue, Mr. Poppler informed the court that it was at issue and that he was dismissing as to defendant William F. Thompson and his administrator and heirs with prejudice. The motion was granted. Mr. Poppler then stated to the court that his associate advised him they should dismiss without prejudice. The court asked if there was any objection, to which one of counsel for defendants said 'Yes' and that he desired to be heard. The court then stated: 'You have already made the motion, Mr. Poppler, and I have granted the motion; and I can't take time now to hear anything further. All right, you are transferred to Department D.'

The plaintiffs in the action are Richard J. Bice and Leila M. Bice. The attorneys for the plaintiffs were Mr. Poppler and Mr. Duke. ¹ Plaintiff Leila M. Bice, in an affidavit filed in support of the motion (this affidavit was filed in connection with the first motion), stated that at the time the motion was made she was not present in the courtroom of Department A but was proceeding directly to Department D where she had been informed by counsel the trial of her case would be held; at no time whatsoever did she authorize either Mr. Poppler or Mr. Duke to dismiss as to any defendant with prejudice; at no time did she authorize either of her counsel to dismiss, compromise, or settle the action with any defendant for any sum; neither she nor Mr. Bice ever authorized the acceptance of any cash or check or draft or other negotiable instrument in settlement; neither she nor Mr. Bice at any time entertained any...