Desherow v. Rhodes
| Decision Date | 14 November 1969 |
| Citation | 82 Cal.Rptr. 138,1 Cal.App.3d 733 |
| Court | California Court of Appeals Court of Appeals |
| Parties | M. James DESHEROW et al., Plaintiffs and Appellants, v. Ernest Max PHODES, Defendant and Respondent. Civ. 33364. |
Jerrold I. Rudelson, Beverly Hills, for appellants.
Veatch, Carlson, Dorsey & Quimby by Robert C. Carlson, and Henry F. Walker, Los Angeles, for respondent.
Appeal from a second judgment for defendant after a second trial of a wrongful death action. Preliminarily defendant seeks to dismiss the appeal as one taken from a void judgment. He argues that the second judgment was void because the order which vacated the first judgment and granted a new trial had not been entered within the required 60-day period. (Code Civ.Proc. § 660.) Section 660 requires a motion for a new trial to be determined within 60 days of notice of entry of judgment and makes an order granting a new trial effective on its entry in the permanent minutes of the court, or, if signed by the judge, on its filing with the clerk. We take up this procedural question first.
The first trial concluded with a judgment for defendant, written notice of which was served on plaintiffs on 8 December 1966. Plaintiffs' motion for a new trial was heard by Judge Stevens Fargo on 6 February 1967, the 60th day following notice of entry of judgment, and after hearing the motion, Judge Fargo ordered a new trial. The minute order granting a new trial was filed with the clerk of the superior court and entered in the register of actions on 6 February, but unbeknown to the parties, it was not stamped with the clerk's entry stamp until 8 February.
Thereafter the cause was retried without any suggestion that the order which vacated the first judgment and granted a new trial had been ineffective. The second trial ended with a directed verdict for defendant, and from the resulting judgment plaintiffs have appealed.
Counsel on both sides were apparently unaware of the date of the clerk's entry stamp on the order for a new trial until plaintiffs' appeal from the second judgment had become perfected. The record on appeal did not show the clerk's entry stamp on the order, but defendant augmented the record to include a certified photocopy of the original minute order, which showed 8 February as the date the clerk's entry stamp had been placed on the order.
Thereafter with leave of court plaintiffs filed declarations which showed:
1. The motion for a new trial was argued on 6 February, the 60th day after service of notice of entry of judgment; counsel and court were well aware that the motion would have to be determined that day.
2. After hearing argument the court ordered a new trial.
3. Counsel for plaintiffs prepared a written order for the judge's signature, but Judge Fargo determined to settle the wording of the order himself.
4. Accordingly, Judge Fargo wrote in longhand the exact wording of the order granting a new trial and delivered it to his clerk, Betty Peters, with instructions to enter the order that day in the permanent minutes of the court.
5. Miss Peters typed up the minute order from Judge Fargo's longhand draft and obtained his approval of the form of the order. She then signed it, dated it, and took it to the clerk's office where she entered the date and substance of the minute order in the clerk's register of actions. After doing this, she initialed the minute order, thereby indicating it had been entered in the register of actions.
6. Miss Peters next delivered the minute order to the minute and calendar clerk and relayed the judge's instructions to enter the minute order that day in the permanent minutes of the court.
7. She then told counsel for plaintiffs, who had accompanied her to the clerk's office, that everything had been taken care of and the minute order would be entered in the permanent minutes of the court that day.
8. No appeal was taken from the order granting the new trial. Subsequently, all parties participated in the second trial, which resulted in the judgment now before this court.
Defendant would have us hold all this activity a nullity because the clerk's entry stamp on the photo-recorded original of the minute order indicates that the order had been entered in the permanent minutes of the court two days late and consequently the motion for a new trial had not been timely determined.
Section 660 reads in pertinent part:
Defendant argues that the minute order which purported to set aside the first judgment and grant a new trial was entered in the permanent minutes of the trial court after the court's power to determine the motion had expired; therefore, the motion for a new trial was denied by operation of law, the first judgment became final, and all subsequent proceedings, including the second trial and second judgment, were void.
We note, first, that this cause does not involve the question of a trial judge's power to order a new trial after the 60-day period has expired. Had Judge Fargo made his order on the 61st day his power to make the order would have lapsed, and the issuance of an order for a new trial would have been beyond his jurisdiction. (Siegal v. Superior Court, 68 Cal.2d 97, 65 Cal.Rptr. 311, 436 P.2d 311.) Here, it is undisputed that Judge Fargo made his order within the 60-day period. But since he did not personally sign the order for a new trial, the critical issue is whether Judge Fargo's order was entered in the permanent minutes of the court within the 60-day period. Patently, this issue requires us to consider what records comprise the permanent minutes of the court and what steps are essential to the entry of an order in the permanent minutes.
From the declarations filed with this court it appears that Judge Fargo prepared and approved a draft of his minute order and directed his clerk to see that it was entered in the permanent minutes of the court that same day, that the minute order was copied, signed, and dated by the clerk, delivered to the clerk's office, entered in the register of actions, and handed to the minute and calendar clerk with the judge's instructions to enter it in the permanent minutes that day. It appears that every step in the routine for entry of an order in the permanent minutes had been taken except the placement of the clerk's entry stamp on the order and photorecordation of the order on microfilm. Defendant's contention, therefore, must be that regardless of specific instructions of the judge an order does not qualify as having been entered in the permanent minutes of the court until it has been stamped with the clerk's date of entry stamp.
So far as we can discover the California codes have not defined permanent minutes of a court, or what constitutes entry of an order in the permanent minutes. Nor to our knowledge have the various courts in California adopted any uniform method of keeping minutes and recording the entry of minute orders in their records. However, Government Code, section 69844 gives us some guidance:
Under this section the clerk is explicitly required to enter orders of the court 'within the time specified by law, or forthwith if no time is specified.' And by the nature of his office the clerk is required to follow the lawful orders of the court with respect to the time of making entries. (Gov.Code, § 69841; cf. Union Bk. & Tr. Co. of Los Angeles v. Los Angeles County, 2 Cal.App.2d 600, 609, 38 P.2d 442.) Clearly, under the language of section 69844 the clerk's failure to enter an order within the time specified by the court does not invalidate the effectiveness of its entry; such a failure is a purely clerical error which courts have continuing power to correct. (Carpenter v. Pacific Mut. Life Ins. Co., 14 Cal.2d 704, 96 P.2d 796; Doxsee Co. v. All Persons, 3 Cal.2d 609, 45 P.2d 192.)
However, defendant argues in effect that the 1959 amendment to section 660 overrides the general rule governing late entry of orders and established an absolute requirement that an order granting a new trial be entered in the permanent minutes of the court to become effective. (34 State Bar J. 86, 468, 643.) Assuming for purposes of this case the correctness of this argument, we are then required to determine what constitutes entry of an order in the permanent minutes of the court. As previously noted, neither permanent minutes nor entry of an order has been defined by statute. In the absence of definition we must attempt to identify the essentials of meaning which generally attach to these terms. When we have done so, we can then decide whether the essentials have been satisfied in a given...
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