Miller v. Stein

• Decision Date: 24 October 1956
• Citation: 302 P.2d 403,145 Cal.App.2d 381
• Court: California Court of Appeals Court of Appeals
• Parties: Lou MILLER, Plaintiff and Respondent, v. Jack R. STEIN and Bernice C. Stein, Defendants and Appellants, Russell Brown Simpson, Harry Bassett, Thomas P. Cruce, David Welts, et al., Defendants and Respondents. Civ. 21670.

Page 403

302 P.2d 403

145 Cal.App.2d 381

Lou MILLER, Plaintiff and Respondent, v. Jack R. STEIN and Bernice C. Stein, Defendants and Appellants, Russell Brown Simpson, Harry Bassett, Thomas P. Cruce, David Welts, et al., Defendants and Respondents.

Civ. 21670.

District Court of Appeal, Second District, Division 2, California.

Oct. 24, 1956.

B. W. Kemper, North Hollywood, for appellant.

Max Tendler, Los Angeles, amicus curiae on behalf of certain respondents.

FOX, Justice.

This an appeal from an order vacating a prior order granting leave to defendants Jack R. Stein and his wife (hereinafter designated the Steins) to file a supplemental cross-complaint. It is another chapter in the meandering judicial odyssey of this voluminous litigation. ¹ Only the proceedings germane to the determination of this appeal will be delineated.

The first pleading in the instant action was filed November 19, 1951, by one Lou Miller, who sought declaratory relief and a judgment quieting his title to certain real property regarding which a controversy existed. Among the defendants named were the Steins, David Welts, R. B. Simpson, and the Realty Title Company, Ltd. The Steins filed an answer to the Miller complaint, ² but no cross-complaint.

On August 16, 1955, the court, by minute order ³ denied a motion by the Steins to file a 'supplemental cross-complaint.' [The designation of such document as a 'supplemental cross-complaint' is an obvious misnomer. The Steins had filed no cross-complaint at the time they answered. The pleading must be regarded as a belated cross-complaint which may be filed only by permission of court. Gallo v. Boyle Mfg. Co., 30 Cal.App.2d 653, 655-656, 86 P.2d 1067.] On September 22, 1955, the Steins filed a notice of motion under section 473, Code of Civil Procedure, accompanied by supporting affidavits, to vacate the minute order of August 16, 1955, and requesting leave to file the proposed 'supplemental cross-complaint' attached thereto. This pleading was for declaratory relief, injunctive relief and damages, named among the cross-defendants Simpson, Miller Realty Title Company, Ltd., and Cruce, and sought to bring in as new parties defendants Jack McElhose and Max Tendler. No counter-affidavits were filed in opposition.

On September 28, 1955, the Steins' motion to vacate the minute order of August 16, 1955, and for leave to file their proposed cross-pleading was heard by Judge McCoy. After hearing the motion, Judge McCoy granted the motion. This order was not then entered in the official minutes, and obviously constituted an oral pronouncement by the court. Some time later on the same day (September 28), the court, sua sponte, signed and filed a document entitled 'Memorandum.' This document reads in part:

'The order heretofore made this day granting the motion of Jack R. Stein and Bernice C. Stein to file a 'Supplemental Cross-Complaint for Declaratory Relief; Injunctive Relief and Damages' is vacated and set aisde.

'The court has re-examined the proposed pleading to which the notice of motion refers. [Here follows a summary of reasons which the court regards as sufficient for a denial of the motion.]

'On reconsideration of the entire record, the court is satisfied that it would be an abuse of discretion to allow the proposed pleading as submitted to the filed.

'As stated above, the court's earlier order is vacated and set aside. The motion for leave to file the proposed 'Supplemental Cross-Complaint' is denied.'

On September 30, 1955, a minute order dated September 28, 1955, was entered by the clerk describing the proceedings which took place on that day. That minute order, which describes the proceeding as a motion (1) to vacate and annul the minute order of August 16, 1955, and (2) for leave to file supplemental cross-complaint, reads: 'Motion granted. Proposed pleading as filed to be considered served and filed as original as of this date.

'Later the court makes the following order:

'The Court's earlier order is vacated and set aside. The motion for leave to file the proposed 'Supplemental cross-complaint' is denied.

'Memorandum of Ruling filed this date.

'Counsel Notified.'

The basic question presented is whether, upon its own motion and without notice, the court could make a second order vacating its prior oral order before the entry of the first order in official minutes.

Section 1003 of the Code of Civil Procedure provides: 'Every direction of a court judge, or justice, made or entered in writing, and not included in a judgment, is denominated an order.' (Italics added.) Unless otherwise required by statute, an order in writing becomes legally effective at the time it is signed and filed by the judge. Maxwell v. Perkins, 116 Cal.App.2d 752, 756, 255 P.2d 10. Although there exists authority to the contrary, the rule has been developed in the most recent cases that an oral order of the court is subject to change prior to its written entry in the official minutes of the court. People v. McAllister, 15 Cal.2d 519, 526, 102 P.2d 1072; Ex parte Monckros Von Vetsera, 7 Cal.App. 136, 139, 93 P. 1036; Smith v. Ross, 57 Cal.App. 191, 194, 207 P. 55; Engleman v. Green, 125 Cal.App.2d Supp. 882, 884, 270 P.2d 127. See, also Brownell v. Superior Court, 157 Cal. 703, 708, 109 P. 91; Jablon v. Henneberger, 33 Cal.2d 773, 775, 205 P.2d 1.

In Ex parte Monckros Von Vetsera, supra, the petitioner was before the court on a writ of habeas corpus. On October 15 the judge announced in open court that the prisoner was illegally detained and ordered his discharge. This verbal order was not reduced to writing nor entered in the minutes. On October 17, the court, in the absence of the petitioner, made and signed a written order vacating the prior order. The petitioner asserted before the reviewing court that the order of October 15 was final adjudication and that the court below lost jurisdiction to subsequently enter any different order. In rejecting the contention that the oral order of the court was irrevocable, the court stated 7 Cal.App. at page 138, 93 P. at page 1036: 'Until the judgment had been entered in the minutes of the court, or had been in some authentic manner reduced to writing, as by the judge signing a written order, it must be held that the judgment lay in the breast of the judge, and that the court had plenary power thereover.'

In People v. McAllister, 15 Cal.2d 519, 524, 102 P.2d 1072, 1074, the Supreme Court reaffirmed this rule, and quoted as follows from the case last cited: "In the case at bar the order relied on by petitioner for his discharge, never having been entered in the minutes of the court, was subject to be vacated and revised by the court, and, having been thus vacated, affords no warrant for his release from the imprisonment * * *' In the McAllister case, the court sentenced defendant to pay a fine in its morning session. Later that day, the judge ordered defendant to return, and revised his order by pronouncing the alternative sentence of time in jail upon failure to pay the fine levied. In upholding the court's action, the Supreme Court stated that, 'if the sentence pronounced has not been entered by the clerk in the minutes * * * then it is proper for the court to change the sentence originally pronounced.' 15 Cal.2d at pages 526-527, 102 P.2d at page 1075. At page 527 of 15 Cal.2d, at page 1075 of 102 P.2d, the court, in pointing out that the clerk must enter his minutes within a reasonable time after orders are made, observed: 'It is not necessary for us to pass upon the question as to what is a reasonable time for the clerk to perform this duty as we are satisfied...