Lacey v. Bertone, 14816
| Decision Date | 05 February 1952 |
| Docket Number | No. 14816,14816 |
| Citation | 109 Cal.App.2d 107,240 P.2d 395 |
| Court | California Court of Appeals Court of Appeals |
| Parties | LACEY v. BERTONE. |
Allen Spivock, San Francisco, for appellant.
Andrew J. Eyman, Bernard B. Glickfeld, San Francisco, for respondent.
Appeals from two orders of the superior court, one denying plaintiff a new trial but reopening the case for further proceedings and amending certain findings and portions of the interlocutory judgment; the other, denying defendant's motion to correct the first order.
Question Presented.
Fundamentally the question is whether under the circumstances of this case, after an interlocutory judgment is entered, a judge to whom the case is referred for an accounting, but who did not try the case originally, may change or modify the prior findings and decree.
Record.
The action was one for specific performance of an agreement for the sale of real property. It was originally tried before Hon. Pat R. Parker, who made findings of fact and conclusions of law and rendered an interlocutory decree to the effect that plaintiff was not entitled to specific performance, but that defendant recover judgment on his cross-complaint cancelling said agreement and restoring possession to plaintiff of certain real and personal property, including certain moneys. The decree then provided that plaintiff account to defendant for certain sums; 'that in the event said E.V. Lacey fails to render such account, or in the event that the Court finds such account unsatisfactory, incomplete or otherwise objectionable, the Court will fix a time and place for a hearing to be held before the above entitled Court upon such notice as the Court may designate and fix, to determine the amount due said S. Bertone from said E.V. Lacey pursuant to the terms of the contract of August 1, 1945, to the date of this decree.' From this decree plaintiff appealed. On that appeal, Lacey v. Bertone, 33 Cal.2d 649, 203 P.2d 755, the Supreme Court held that the appeal was premature because the judgment was merely interlocutory, and left undetermined certain items as to which an accounting was required. The cause was remanded for determination of these items. In the meantime Judge Parker died. The further hearing was before Hon. Preston Devine. After taking evidence, Judge Devine made his findings of fact, conclusions of law and final judgment and decree. Plaintiff thereupon moved for a new trial. It is the order made upon this motion from which the first appeal is taken. Defendant moved 'to Correct Minute Order Denying Motion for New Trial or to Enter Previous Judgment as Final.' The second appeal is from the order denying this motion. Defendant, contending that the order made on motion for new trial should be corrected to read simply 'Motion for new trial denied,' attacks all of said order except the portion denying the new trial. The two appeals will be considered together, for, if the first order was valid, the second order refusing to change it was likewise valid. On the other hand, if the first order was invalid, then the court should have granted plaintiff's motion to enter the previous judgment as final.
Power of Second Judge.
The order complained of 1 first denied plaintiff's motion for new trial 'so far as specific performance is concerned.' It then proceeded to modify or vacate certain findings contained in Judge Parker's findings of fact, certain findings contained in Judge Devine's findings of fact, one finding in Judge Parker's interlocutory judgment, and certain findings in Judge Devine's final judgment. It then provided: 'The cause is reopened for further proceedings and the introduction of additional evidence in accordance with the provisions of Section 662 of the Code of Civil Procedure, and the judgments heretofore rendered, interlocutory and final, are hereby set aside pending said further proceedings.'
The changes in the findings all had to do with matters of accounting. They in no wise affected the findings upon which the denial of specific performance was based. They did, however, in two instances, at least, materially change Judge Parker's findings of payments made by plaintiff. Thus, what Judge Devine did in the order denying the new trial was to permit Judge Parker's findings and decree to stand on the issue of whether plaintiff was entitled to specific performance, but to change both his own and Judge Parker's findings on matters of accounting, and then grant a further trial on the accounting issues.
There can be no question but that so far as the findings Judge Devine made on the issues submitted to him, are concerned, he had the power on motion for new trial to change or modify them. Nor can there be any question but that he had the power on such a motion to grant a further trial on the limited issues of the accounting. These powers are granted by section 662, Code of Civil Procedure, which provides in part: '* * * or, in lieu of granting a new trial, may vacate and set aside the findings and judgment and reopen the case for further proceedings and the introduction of additional evidence * * *'. See also Gardner v. Rich Mfg. Co., 68 Cal.App.2d 725, 158 P.2d 23; Veterans' Welfare Board v. Burt, 4 Cal.App.2d 659, 41 P.2d 587.
Defendant's chief attack is based on the theory that Judge Devine had no power to change any finding made by Judge Parker. He relies on City of Long Beach v. Wright, 134 Cal.App. 366, 25 P.2d 541, which is based on DeMund v. Superior Court, 213 Cal. 502, 2 P.2d 985. In that case findings and an interlocutory judgment were entered by one judge and then they were amended by a second judge. It was held that a second judge cannot on motion for new trial change, modify or reverse findings of a prior judge who actually saw the witnesses, heard the evidence, arguments of counsel, and with conflicting evidence before him made...
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...102 Cal.Rptr. 11; see also Code Civ. Proc., § 661; Beck v. Superior Court (1942) 20 Cal.2d 77, 81, 124 P.2d 9; Lacey v. Bertone (1952) 109 Cal.App.2d 107, 111, 240 P.2d 395.) Thus, as this court noted in People v. Brown (1988) 45 Cal.3d 1247, 1264, footnote 7, 248 Cal.Rptr. 817, 756 P.2d 20......
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