Cross v. Tustin

• Decision Date: 19 October 1951
• Citation: 236 P.2d 142,37 Cal.2d 821
• Court: California Supreme Court
• Parties: CROSS v. TUSTIN et al. S. F. 18413.

Page 142

236 P.2d 142

37 Cal.2d 821

CROSS v. TUSTIN et al.

S. F. 18413.

Supreme Court of California, in Bank.

Oct. 19, 1951.

As Modified on Denial of Rehearing Nov. 15, 1951.

Nancy Cross, in pro. per.

Howard W. Campen, County Counsel, Harry C. Nail, Jr., Asst, County Counsel, and Wade H. Hover, Deputy County Counsel, San Jose, for respondents.

SHENK, Justice.

The plaintiff appealed from orders denying motions to impeach and vacate and to amend a settled statement of the oral proceedings on the trial of her petition in mandamus, and from orders dismissing her motions for a new trial of her motions. The defendants have moved to dismiss the appeals on the ground that the orders are non-appealable.

On December 6, 1948, after passing a regular competitive examination, Nancy Cross was appointed Senior Personnel Technician of Santa Clara County. She thereupon entered upon a six-month probationary period of employment. On March 2, 1949, she was dismissed without the filing of charges. She requested a hearing before the Civil Service Commission which was denied.

On July 7, 1949, appearing for herself, Nancy Cross as plaintiff filed in the superior court in Santa Clara County an amended petition for the writ of mandate. She alleged that her dismissal as a probationer was wrongful pursuant to county ordinance 154 and that said county ordinance was in contravention of the County Civil Service Enabling Law, Govt. Code Secs. 31100-31113. She sought to have the court set aside the dismissal, direct that she be reinstated in her former or a similar position, and that she received compensation from the time of her dismissal to the date of reinstatement. The defendants filed an answer. At the trial on September 13, 1949, neither side requested a reporter and there is no written record of the proceedings. On October 15th the court made its findings and determined that the provisions of ordinance 154 giving the appointing authority the power to dismiss a probationer without the filing of specific charges and without providing for a hearing were valid and not in contravention of the County Civil Service Enabling Law. The judgment, entered on November 10, 1949, was a denial of the writ. The plaintiff appealed, giving notice that she desired to prosecute the appeal on a settled statement of the oral proceedings.

The plaintiff submitted to the trial court for settlement a proposed narrative statement. The defendants proposed amendments thereto. After hearing on the proposed statements the court rejected both and directed that a statement be prepared by defendants' counsel as indicated by the court. That statement was settled on December 29, 1949. On the same day the plaintiff filed her petition in the District Court of Appeal, First Appellate District, for settlement of the narrative statement. On February 24, 1950, her petition was denied on the ground that that court could not substitute its judgment for that of the trial court as to what happened in the course of the unreported trial proceedings. A petition for rehearing and a petition for hearing in this court were denied. Cross v. Tustin, 96 Cal.App.2d 207, 214 P.2d 565.

On May 26, 1950, after notice, the plaintiff moved in the trial court to impeach and vacate the settled statement pursuant to sections 473 and 1916 of the Code of Civil Procedure. By consent the motion was heard before another judge. Hearings were had on May 26th and May 29th. The motion to impeach and vacate was denied. Thereupon the plaintiff moved in open court to amend the settled statement. That motion was also denied. The plaintiff filed notice of intention to move for a new trial as to each motion. After a hearing the motions for new trial were dismissed. The plaintiff appealed from all of the orders.

Pursuant to notice and on April 9, 1951, the defendants moved to dismiss these appeals on the ground that since the order settling the statement of trial proceedings was non-appealable, an appeal would not he from an order refusing to vacate the non-appealable order. The District Court of Appeal, First Appellate District, granted the motion and denied a petition for rehearing. Cross v. Tustin, 1951, Cal.App., 231 P.2d 59. On petition a hearing was granted in this court for the purpose of considering the question whether a motion based on fraud and collusion in the procurement of the settled statement was a special proceeding and an order therin appealable as an order in such special proceeding.

Section 1916 of the Code of Civil Procedure provides that any judicial record may be impeached by evidence of want of jurisdiction in the court or judicial officer, of collusion between the parties, or of fraud in the party offering the record in respect to the proceedings. That section is in part a codification of the settled doctrine that a court has inherent power to expunge a fraudulent record or set aside a decree procured by extrinsic fraud. As U.S. 61, 65-66, 25 L.Ed. 93, such action is u.s. 64, 65-66, 25 Led. 93, such action is justified in cases where an unsuccessful party has been prevented from exhibiting fully his case by fraud or deception practiced on him by his opponent, as by keeping him away from court or by a false promise of a compromise; or where the defendant had no knowledge of the suit by being kept in ignorance by acts of the plaintiff; or where an attorney fraudulently or without authority assumes to represent a party and connives at his defeat; or where the employed attorney corruptly sells out his client's interest to the opponent. There are many instances in this state of the exercise of the power which is deemed not to derive from section 473 of the Code of Civil Procedure and is not limited by any time period. See e. g. McGuinness v. Superior Court, 196 Cal 222, 237 P. 42, 40 A.L.R. 1110, and Raps v. Raps, 20 Cal.2d 382, 387, 125 P.2d 826, spouse...