Carney v. Simmonds

• Decision Date: 17 September 1957
• Citation: 49 Cal.2d 84,315 P.2d 305
• Parties: Florence E. CARNEY, Administratrix of the Estate of Rose Simmonds, Deceased, Substituted for Rose Simmonds, Deceased, Plaintiff and Appellant, v. Anna SIMMONDS et al., Defendants and Appellants. S. F. 19375.
• Court: California Supreme Court

Page 305

315 P.2d 305

49 Cal.2d 84

Florence E. CARNEY, Administratrix of the Estate of Rose Simmonds, Deceased, Substituted for Rose Simmonds, Deceased, Plaintiff and Appellant, v. Anna SIMMONDS et al., Defendants and Appellants.

S. F. 19375.

Supreme Court of California, In Bank.

Sept. 17, 1957.

As Modified on Denial of Rehearing Oct. 17, 1957.

Eugene S. Clifford and Heller, Ehrman, White & McAuliffe, San Francisco, for plaintiff and appellant.

Jacobsen & Tobin and Harold W. Tobin, San Francisco, for defendants and appellants.

CARTER, Justice.

In this case plaintiff commenced an action which she entitled one for the partition of real property against defendants. Defendants' demurrer was overruled and plaintiff filed an amended complaint. No demurrer was filed to the amended complaint; it was answered, defendants claiming among other things that it did not state a cause of action. When it came on for trial defendants moved for a 'judgment on the pleadings' on the ground that the amended complaint failed to state a cause of action in that it purported to attack a decree assigning the entire estate to a widow on the ground of extrinsic fraud but failed to allege such fraud or show that a different result would have been reached but for the fraud. It was argued and then the court stated that if plaintiff was able to prove what she alleged, she had a cause of action but 'this' is not it; the defendants' motion for 'judgment on the pleadings is granted.' Then followed a discussion about amending the amended complaint and the court said it granted the motion without leave to amend. The court made and filed an order for 'judgment on the pleadings' without leave to amend and for defendants. It also entered a judgment on that order. Plaintiff gave notice of motion 'for a new trial and for order vacating and setting aside judgment' on the pleadings and for an order allowing her to file a proposed amended complaint. The court made its order in which it granted plaintiff's motion for a new trial, vacated the judgment, and gave plaintiff leave to amend. Defendants appeal from the order granting a new trial and vacating the judgment; plaintiff cross appeals from the judgment. Treating the motion and order as one for new trial, is must be considered as a proper procedure for the reasons hereinafter stated.

The statutes on new trial provide that: 'A new trial is 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. 'An issue of law arises upon a demurrer to the complaint or answer, or to some part thereof.' Code Civ.Proc. § 589.

'An issue of fact arises

'1. Upon a material allegation in the complaint controverted by the answer; and,

'2. Upon new matters in the answer, except an issue of law is joined thereon.' Code Civ.Proc. § 590. A new trial may be granted on the 'issues' on the grounds, among others, errors in law occurring at the trial, that the verdict or decision is against the law and irregularity in the proceedings. Code Civ.Proc. § 657.

It has been held, in a first group of cases, that pursuant to sections 590 and 656, as to various classes of judgments, a motion for a new trial was not the proper procedure; that the trial court should not grant a motion for a new trial: (1) Judgment of dismissal after demurrer sustained: Jones v. Chalfant, 128 Cal. 334, 60 P. 852; Confar v. Whelan, 8 Cal.App.2d 101, 46 P.2d 991; Richardson v. United etc. of Carpenters, 129 Cal.App.2d 249, 276 P.2d 636; Holmes v. Justice's Court, 19 Cal.App.2d 362, 366, 65 P.2d 820. (2) Judgment of dismissal generally: City of Pasadena v. Superior Court, 212 Cal. 309, 298 P. 968. (3) Judgment on the pleadings: Abbey Land & Improvement Co. v. San Mateo, 167 Cal. 434, 139 P. 1068, 52 L.R.A.,N.S., 408; Hotel Park Central v. Security-First Bk., 15 Cal.App.2d 293, 59 P.2d 606; Burdrow v. Wheatcraft, 115 Cal.App.2d 517, 252 P.2d 637. (4) Judgment on agreed statement of ultimate facts: Gregory v. Gregory, 102 Cal. 50, 36 P. 364; City of Pasadena v. Superior Court, 212 Cal. 309, 314, 298 P. 968; Kaye v. Superior Court, 33 Cal.App. 269, 164 P. 912; Quist v. Sandman, 154 Cal. 748, 99 P. 204; Monteverde v. Superior Court, 60 Cal.App. 252, 212 P. 690; Pahlka v. McCormick, 123 Cal.App.2d 763, 267 P.2d 390; Gillmore v. American C. I. Co., 65 Cal. 63, 2 P. 882. (5) Default judgments: McRae v. Lackmann, 8 Cal.App. 241, 96 P. 505; Reeves v. Reeves, 34 Cal.2d 355, 209 P.2d 937; Crackel v. Crackel, 17 Cal.App. 600, 121 P. 295; Rehfuss v. Rehfuss, 169 Cal. 86, 145 P. 1020; Waldecker v. Waldecker, 178 Cal. 566, 174 P. 36; Foley v. Foley, 120 Cal. 33, 52 P. 122; Savings & Loan Soc. v. Meeks, 66 Cal. 371, 5 P. 624; In re Heldt's Estate, 98 Cal. 553, 33 P. 549; In re Estate of Dean, 149 Cal. 487, 87 P. 13; Connell v. McGahie, 37 Cal.App. 439, 442, 173 P. 1115; Hall v. Hall, 42 Cal.2d 435, 439, 267 P.2d 249. It has been said generally that a motion for a new trial is not proper where no issue of fact is tried. Holmes v. Justice's Court, supra, 19 Cal.App.2d 362, 366, 65 P.2d 820; Jones v. Chalfant, supra, 128 Cal. 334, 60 P. 852; Reeves v. Reeves, supra, 34 Cal.2d 355, 209 P.2d 937; Rinaldo v. Superior Court, 15 Cal.App.2d 585, 59 P.2d 868; Foley v. Foley, supra, 120 Cal. 33, 52 P. 122; Hotel Park Central v. Security-First Bk., supra, 15 Cal.App.2d 293, 59 P.2d 606; Pahlka v. McCormick, supra, 123 Cal.App.2d 763, 267 P.2d 390; Clark v. Torchiana, 19 Cal.App 786, 790, 127 P. 831; Hall v. Hall, supra, 42 Cal.2d 435, 267 P.2d 249; Stockton Iron Works v. Walters, 18 Cal.App. 373, 123 P. 240; In re Estate of Richards, 139 Cal. 72, 72 P. 633.

On the contrary, in a second group of cases, it has been held that a motion for a new trial is proper in the following situations: Judgment on the pleadings (class 3 of group 1 above) (see Allen v. California Mut. B. & L. Ass'n, 40 Cal.App.2d 374, 104 P.2d 851; Moore v. Bates, 46 Cal. 29) or in effect the same kind of judgment, the sustaining of an objection to the introduction of any evidence for one reason or another including the failure of the complaint to state a cause of action followed by judgment for defendant. Moore v. Bates, supra, 46 Cal. 29; Green v. Duvergey, 146 Cal. 379, 80 P. 234; Stow v. Superior Court, 178 Cal. 140, 172 P. 598; Allen v. California Mut. B. & L. Ass'n, supra, 40 Cal.App.2d 374, 104 P.2d 851; Bice v. Stevens, 129 Cal.App.2d 342, 277 P.2d 106. Judgment of nonsuit either on plaintiff's opening statement or after his evidence is presented (Carton Corporation v. Superior Court, 76 Cal.App. 434, 436, 244 P. 932; Castillo v. Warren, 44 Cal.App.2d 903, 113 P.2d 232; Converse v. Scott, 137 Cal. 239, 70 P. 13; Toulouse v. Pare, 103 Cal. 251, 37 P. 146; Braley v. Empire Water Co., 130 Cal.App. 532, 20 P.2d 75. Judgment on a directed verdict (Steele v. Werner, 28 Cal.App.2d 554, 83 P.2d 56). And a motion for a new trial has been indicated as proper although the issue tried was not one of fact. See Horstman v. Krumgold, 55 Cal.App.2d 296, 130 P.2d 721; City of Pasadena v. Superior Court, 212 Cal. 309, 298 P. 968; Bice v. Stevens, supra, 129 Cal.App.2d 342, 277 P.2d 106.

To clarify the law we deem it necessary to re-examine the law on this subject. The basic reason underlying the decisions in the five classes of judgments in the first group above mentioned holding a new trial not proper appears to be that a motion for a new trial should not be entertained where the only issue tried is one of law as distinguished from one of fact or one of law and fact. This reason might seem justified on the basis of sections 656 and 590 of the Code of Civil Procedure, quoted supra, but those sections must be read and construed in conjunction with the basic section on motions for a new trial, section 657 of the Code of Civil Procedure. It provides that 'any' decision may be vacated or modified on motion for a new trial, indicating that the decision need not necessarily be based on a question of fact. The new trial may be on 'all' or 'part of the issues' further pointing to no distinction between fact and law (the issues). The grounds for the new trial motion may be either issues of fact such as insufficiency of the evidence or issues of law such as 'irregularity in the proceedings of the court, jury or adverse party,' 'misconduct of the jury,' that the decision is 'against the law,' 'error in law, occurring at the trial,' and others. These grounds clearly indicate that issues of law may be re-examined on a motion for a new trial. Moreover it should be observed that there may ba a 'trial' and hence a situation proper for a new trial motion where only issues of law are determined. See Berri v. Superior Court, 43 Cal.2d 856, 279 P.2d 8. As a matter of orderly procedure there is no less reason why the trial court should have a second chance to re-examine its judgment where issues of fact are involved than where issues of law or law and fact are decided. We conclude therefore that a motion for a new trial is proper procedure in any of the classes of judgments mentioned in the first group of cases above cited whether the judgment is based on law or fact or both, except possibly in the case of default judgments or judgments by agreement or confession where there may be the question of the right of the moving party to make any objection to the judgment. The cases cited in support of the judgments in classes 1, 2, 3 and 4 in the first group of cases are disapproved as well as the statements in those cases which limit a new trial to a case where there has been an issue of fact tried; the results reached in the second group of cases are approved. There are suggestions in some of the cases that where judgment is entered after a demurrer is sustained a new trial should not be proper, but there appears to be no difference between that situation and the others in the first four classes of judgment in the first group of cases above cited. The issue...