Jach v. Edson

• Citation: 255 Cal.App.2d 96,62 Cal.Rptr. 925
• Court: California Court of Appeals
• Decision Date: 16 October 1967
• Parties: Larry JACH, a minor by George Jach, his Guardian Ad Litem, Plaintiff and Respondent, v. Mark EDSON, Defendant and Appellant. Civ. 8748.

Page 925

62 Cal.Rptr. 925

255 Cal.App.2d 96

Larry JACH, a minor by George Jach, his Guardian Ad Litem, Plaintiff and Respondent, v. Mark EDSON, Defendant and Appellant.

Civ. 8748.

Court of Appeal, Fourth District, Division 1, California.

Oct. 16, 1967.

[255 Cal.App.2d 97] Gray, Cary, Ames & Frye, San Diego, for appellant.

[255 Cal.App.2d 98] Marsh & Graves, El Cajon, for defendant.

OPINION

COUGHLIN, Associate Justice.

Plaintiff was injured in a scuffle with defendant occurring in a high school gymnasium, and sought recovery of damages under a complaint in two counts; the first alleged defendant 'so negligently squeezed, struck, grabbed and hit plaintiff so as to proximately cause plaintiff to sustain the hereinafter described injuries'; and the second alleged defendant 'assaulted and battered plaintiff so as to proximately cause plaintiff to sustain' the aforesaid injuries. A jury trial resulted in a verdict for defendant and judgment accordingly. In due course plaintiff moved 'for an Order for Judgment notwithstanding the verdict, and if the same be denied, for a new trial.' The motion was made 'upon the grounds of the insufficiency of the evidence to justify the verdict.' The court made the following minute order:

'Plaintiff's Motion for Judgment Notwithstanding the Verdict is granted on the issue of liability, and Plaintiff's Motion for New Trial is granted on the issue of damages on the grounds of the insufficiency of the evidence to justify the verdict, as more fully set forth in the record.'

Thereafter, the court signed an 'order', prepared by counsel for plaintiff, dated December 16, 1966, the pertinent parts of which are as follows:

'IT IS HEREBY ORDERED THAT

'1. * * *

'2. Judgment notwithstanding the verdict as regards the issue of liability is hereby granted in favor of the plaintiff on the grounds that there was not evidence to return a verdict in favor of EDSON and also that the Court was in error in giving jury instructions relating to contributory negligence.

'3. That a new trial be granted on the issue of damages only and that

'4. Judgment previously entered in favor of defendant EDSON and against plaintiff JACH shall be and is hereby vacated.'

This 'order' was filed and entered in the judgment book. Defendant appealed 'from the judgment notwithstanding the verdict in favor of plaintiff and from the order granting a partial new trial, dated December 16, 1966.' The order does not purport to be and is not a judgment. (Cf. Prothero v. Superior Court, etc., 196 Cal. 439, 443, 238 P. 357.) An appeal from a nonexistent judgment is a nullity. As a consequence, defendant's purported appeal from the judgment notwithstanding the verdict should be dismissed. (Moon v. Moon, 62 Cal.App.2d 189, 193, 144 P.2d 599.)

An order granting a motion for judgment notwithstanding the verdict is nonappealable. (Jordan v. Talbot, 55 Cal.2d 597, 602, 12 Cal.Rptr. 488, 361 P.2d 20.) Therefore, even assuming defendant's appeal was directed to the order of December 16, 1966 granting plaintiff's motion for judgment notwithstanding the verdict rather than to a judgment, it must be dismissed.

The court granting a motion for judgment notwithstanding the verdict may reconsider its order in the premises prior to entry of judgment upon the order. (Cf. Bank of America etc. v. Superior Court, etc., 20 Cal.2d 697, 702, 128 P.2d 357.) In light of this fact, it is proper to consider the propriety of the order in the case at bench which purported to direct entry of judgment in favor of plaintiff on the issue of liability and reserve for further judgment the determination of the issue of damages.

A trial court has no authority to enter multiple final judgments determining multiple issues between the same parties to an action.

'A judgment is the final determination of the rights of the parties in an action or proceeding.' (Code Civ.Proc. § 577.)

Ordinarily only one final judgment in an action is authorized. (Sjoberg v. Hastorf, 33 Cal.2d 116, 118, 199 P.2d 668; Bank of America etc. v. Superior Court, etc., supra, 20 Cal.2d 697, 701, 128 P.2d 357.) Thus, in an action involving issues of liability and damages, where the former is determined by a trial confined to that issue no judgment upon the determination is entered until trial of the issue of damages. (Code Civ.Proc. § 598.) An order determining an issue in a case, but not all issues, even though final for the purpose of further proceedings in the trial, is not a judgment; is not appealable; and may be reviewed only on appeal from the final judgment in the action. (Sjoberg v. Hastorf, supra, 33 Cal.2d 116, 119, 199 P.2d 668.)

A court may enter judgment notwithstanding the verdict in favor of plaintiff if the evidence, as a matter of law, dictates a determination of all of the issues in the case in his favor. (Walters v. Bank of America etc. Ass'n, 9 Cal.2d 46, 49, 69 P.2d 839; Cunning v. County of Humboldt, 204 Cal. 31, 35, 266 P. 522.) Where the evidence, as a matter of law, does not support a determination in favor of plaintiff upon all of the issues but does support a determination in favor of plaintiff on some issues, the court should instruct the jury to determine the latter issues in favor of the plaintiff as a matter of law. (Blank v. Coffin, 20 Cal.2d 457, 461, 126 P.2d 868; Black v. Southern Pac. Co., 124 Cal.App. 321, 335, 12 P.2d 981.) Where, in a proper case, the court does not so instruct the jury any error in the premises may be corrected on motion...