Costa v. Regents of University of Cal.
| Decision Date | 17 April 1951 |
| Citation | 103 Cal.App.2d 491,229 P.2d 867 |
| Court | California Court of Appeals Court of Appeals |
| Parties | COSTA v. REGENTS OF UNIVERSITY OF CALIFORNIA et al. |
Ernest I. Spiegl, Belli, Ashe & Pinney, San Francisco, for appellant.
Dana, Bledsoe & Smith, San Francisco, for respondents.
Respondents move to dismiss the appeal. Two separate questions are involved which for clarity of treatment must be considered separately.
The Motion of Respondents Carter and Emerson.
These respondents during the course of trial made a motion for nonsuit which was granted by the court, the order granting their motion being entered in the minutes of the court on June 28, 1949 and reading so far as material here: 'Thereupon counsel for defendants * * * made a motion for a nonsuit, which said motion the court granted as to William E. Carter and Anastasia Emerson * * *.'
Thereafter the trial proceeded as to the other defendants and after its conclusion a formal judgment of nonsuit as to defendants Emerson and Carter was signed by the trial judge and entered on August 19, 1949. Plaintiff made a motion for new trial which was ordered 'dismissed because of defective notice' on October 6, 1949. Notice of appeal was filed on October 14, 1949.
It is clear that if the minute order of June 28, 1949 granting the motion for nonsuit was the appealable order the notice of appeal was filed too late. Rules on Appeal, Rule 2(a) and (b).
The notice of motion for new trial was filed on September 3, 1949. This was more than 60 days after the entry of the minute order granting the motion for nonsuit and hence could not operate to extend the time for appealing from that order, Rules on Appeal, Rule 3(a), if that is the appealable order.
Under the long established rule the minute order granting a motion for nonsuit was the order from which the appeal must be taken. Nicholson v. Henderson, 25 Cal.2d 375, 378, 153 P.2d 945; McColgan v. Jones, Hubbard, etc., Inc., 11 Cal.2d 243, 245-246, 78 P.2d 1010. This was not always the rule, Kimple v. Conway, 69 Cal. 71, 10 P. 189, but in 1897 section 581 Code of Civil Procedure, dealing with dismissals and nonsuits was amended to provide: 'The dismissals mentioned in subdivisions three, four, five and six of this section, shall be made by orders of the court entered upon the minutes thereof, and shall be effective for all purposes when so entered * * *.' (Emphasis ours.) Stats. 1897, p. 98.
Subdivision 5 of this section covered orders granting nonsuits and by reason of the italicized language in this amendment the order granting a nonsuit entered in the court's minutes was thereafter held to be the appealable order. Commins v. Guaranty Oil Co., 29 Cal.App. 139, 154 P. 882; Brown v. Sterling Furniture Co., 175 Cal. 563, 166 P. 322.
In 1947 sec. 581, Code Civ.Proc., was recast into several sections, i. e. secs. 581, 581c and 581d. Stats.1947, p. 2256. Sec. 581d provides in part: 'All dismissals ordered by the court shall be entered upon the minutes thereof * * * and such orders when so entered shall constitute judgments and be effective for all purposes * * *.'
In recasting sec. 581 the legislature put the provision for nonsuits into a separate section, sec. 581c, reading in part:
It is appellant's contention that by placing the provision for a judgment of nonsuit in a separate section the legislature indicated an intention that it should no longer be considered a 'dismissals ordered by the court' which 'shall be entered upon the minutes' and 'be effective for all purposes'.
This argument ignores the statutory history of this state for an even one hundred years. The Practice Act in section 148, Stats.1851, p. 73, treated a judgment of nonsuit as one form of dismissal. We quote:
'An action may be dismissed, or a judgment of nonsuit entered, in the following cases: * * *
* * *'
This section of the Practice Act became sec. 581, Code Civ.Proc., when the codes were enacted in 1872. From 1897 until 1947 a judgment of nonsuit was expressly referred to as a dismissal in the language above quoted: 'The dismissals mentioned in subdivisions * * * five * * * of this section shall be made by orders of the court entered upon the minutes * * *.'
In McColgan v. Jones, Hubbard, etc., Inc., supra, Justice Seawell said, speaking for the court, 11 Cal.2d at page 246, 78 P.2d at page 1011: 'A nonsuit is but a form of dismissal of an action.'
In the face of the long statutory and judicial history of this state in which a judgment of nonsuit has always been treated as one form of dismissal we cannot assume that the legislature in 1947 in recasting sec. 581 into four sections intended such a radical departure from established practice as to treat a judgment of nonsuit as no longer being a dismissal, particularly in view of the fact that they placed the new sec. 581d after the new sec. 581c and provided in sec. 581d that: 'All dismissals ordered by the court shall be entered upon the minutes thereof * * * and such orders when so entered shall constitute judgments * * *.' The italicized language expressly making such minute entries judgments was newly added and was a legislative recognition of existing law. See Brown v. Sterling Furniture Co., supra, 175 Cal. at page 564, 166 P. at page 323, where the court said that 'the order of nonsuit entered upon the minutes of the court constitutes this judgment of nonsuit, since the law declares that such an order so entered is 'effective for all purposes."
Appellant emphasizes that sec. 581c now makes a judgment of...
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...an appeal from the judgment permits a review of the order granting a directed verdict. (See Costa v. Regents of University of Cal. (1951) 103 Cal.App.2d 491, 495, 229 P.2d 867.) In the case at bar, however, the judgment failed to mention the directed verdict nor did the clerk enter judgment......
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