Blake v. Municipal Court of Northern Judicial Dist., San Mateo County

• Decision Date: 23 August 1956
• Docket Number: No. 16749,16749
• Citation: 300 P.2d 755,144 Cal.App.2d 131
• Court: California Court of Appeals Court of Appeals
• Parties: John E. BLAKE, Petitioner and Appellant, v. The MUNICIPAL COURT of the NORTHERN JUDICIAL DISTRICT, COUNTY OF SAN MATEO, State of California, Defendant and Respondent.

Page 755

300 P.2d 755

144 Cal.App.2d 131

John E. BLAKE, Petitioner and Appellant, v. The MUNICIPAL COURT of the NORTHERN JUDICIAL DISTRICT, COUNTY OF SAN MATEO, State of California, Defendant and Respondent.

No. 16749.

District Court of Appeal, First District, Division 2, California.

Aug. 23, 1956.

Rehearing Denied Sept. 21, 1956.

Hearing Denied Oct. 17, 1956.

John J. Taheny, Jr., John J. Taheny, San Francisco, Chas. N. Douglas, San Francisco, for appellants.

W. L. A. Calder, Abraham Glicksberg, San Francisco, for respondent.

DOOLING, Justice.

Appellant was adjudged guilty of contempt of court by respondent municipal court and sentence imposed. His petition for a writ of review was granted by the superior court. After a hearing the latter court rendered judgment discharging the writ and affirming the order to which the writ was directed. The petitioner appeals from this judgment.

Pursuant to the order contained in the writ of review respondent certified and sent to the superior court a transcript of all records and proceedings had before it in respect to this matter. A minute order dated December 2, 1954, of respondent court states:

'Defendant herein, John E. Blake, is hereby cited to be in contempt of this Court in that he committed certain acts in the presence of this Court as follows:

',1. That said John E. Blake violated the rules of this Court in that he approached the Bench of this Court, prior permission so to do not having been obtained.

'2. That said John E. Blake, in the presence of this Court, did make loud and unusual noises.

'3. That said John E. Blake did make an attempt to effect a service of process upon the Judge of this Court while said Court was in session and while said Judge was sitting as Judge of this Court.

'Said process ordered held as evidence. Said John E. Blake released on own recognizance, ordered to return on December 7, 1954, at the hour of 9:00 o'clock A.M. for sentence herein.'

A second minute order shows that on December 7, 1954, 'defendant appears in court with his attorney, John J. Taheny, Jr., for sentence. The court imposes sentence as follows: Five days in the County Jail, Suspended on condition as fine of $100.00 is paid. Ten day stay of execution granted.'

On December 16, 1954, the day before the suspension of this sentence would expire, appellant filed his petition for certiorari in the superior court and the writ of certiorari was issued thereon. On December 17, the day after the writ had issued restraining further proceedings in the municipal court, a signed order bearing date of June 7 and entitled 'Formal Order Adjudging John Blake Guilty of Contempt' was filed with the clerk of the municipal court. This written order purports to state the facts of the three alleged instances of contempt in somewhat different language from the original order of December 2.

At the outset we must determine the effect, if any, of the purported order filed on December 17.

It is well settled that where an order or judgment correctly records the completed judicial action of a court the court can thereafter vacate, modify or supersede it only in the manner provided by law and where the law makes no provision for such action an order attempting to vacate, modify or supersede it is void and of no effect. The rule is frequently stated that a clerical error or misprision may always be corrected by the court but judicial action may not be. (29 Cal.Jur.2d, Judgments, § 102, pp. 17-19.)

An examination of the record satisfies us that the purported order filed on December 17, 1954, falls within the latter class. The order of December 2 recites the facts constituting the alleged contempt and orders the appellant to appear on December 7 'for sentence.' The order of December 7 recites the appearance of appellant in court 'for sentence' and further shows the action of the court: 'The Court imposes sentence as follows: * * *' The two orders taken together show completed judicial action: the finding of appellant guilty of contempt in the particulars specified and the formal imposition of sentence therefor. This judicial action being complete and final, it was no longer open to the court to make any further or different order therein.

The case in this respect is similar to that under review in McLaughlin v. Superior Court, 128 Cal.App.2d 62, 274 P.2d 745. In that case the court after making its order dismissing a contempt proceeding purported to set the order of dismissal aside and adjudge the petitioner guilty of contempt. The court said in holding the orders of the court subsequent to the order of dismissal void, 128 Cal.App.2d at page 66, 274 P.2d at page 748:

'Since '(t)he judgment and orders of the court, judge, or justice, made in cases of contempt, are final and conclusive' Code Civ.Proc. sec. 1222, and the contempt citation had been dismissed, the court had no authority to make the order of June 24 purporting to set aside its order of June 16 and then to grant the exceptions of defendant to the findings and recommendation of the commissioner, and to vacate and set aside the order made thereon dismissing the contempt proceedings. In making its purported order of June 24, the obvious purpose of the court was to change its prior decision and thus correct a judicial error. Certainly the order dismissing the contempt citation was not the result of clerical or other inadvertence which caused the order not to truly reflect the court's decision. In such circumstances it is held in Stevens v. Superior Court, 7 Cal.2d 110, 112, 59 P.2d 988, 990, that 'While a court has power to correct mistakes in its records and proceedings, and to set aside judgments and orders inadvertently made, which are not actually the result of the exercise of judgment, it has no power, having once made its decision after regular submission, to set aside or amend for judicial error.' This court has pointed out, in Maxwell v. Perkins, 116 Cal.App.2d 752, 755, 255 P.2d 10, 12, that 'This class of error may be corrected only by appropriate statutory procedure and a court may not vacate an order not of a discretionary nature merely because upon reexamination of the issues it decides it has misapplied the controlling law.' As said in Eisenberg. v. Superior Court, 193 Cal. 575, 579, 226 P. 617, quoting from Holtum v. Greif, 144 Cal. 521, 525, 78 P. 11, 12: 'The decision of the trial court having been once made after regular submission of the motion its power is exhausted. It is functus officio.''

Counsel for respondent cite Gillen v. Municipal Court, etc., 37 Cal.App.2d 428, 99 P.2d 555, in support of the court's power to make the order of December 17. In the Gillen case the facts were substantially different. The court orally declared the petitioner in that case to be in contempt at the time the alleged contempt occurred and continued the matter to a later date at which the formal adjudication of contempt was filed. The court said, 37 Cal.App.2d 431, 99 P.2d 557: 'On the happening of the event it was appropriate that the court should have stated, 'You are guilty of contempt.' But the contempt proceeding could have been, and was, legally continued to a future date. To constitute a judgment of contempt it was necessary that the court should...