Phelan v. Superior Court in and for City and County of San Francisco

• Decision Date: 09 May 1950
• Citation: 217 P.2d 951,35 Cal.2d 363
• Court: California Supreme Court
• Parties: & COUNTY OF SAN FRANCISCO et al. S. F. 17884. Supreme Court of California, in Bank

Page 951

217 P.2d 951

35 Cal.2d 363

PHELAN v. SUPERIOR COURT IN AND FOR CITY & COUNTY OF SAN FRANCISCO et al.

S. F. 17884.

Supreme Court of California, in Bank.

May 9, 1950.

Hallinan, MacInnis & Zamloch and Ralph Wertheimer, San Francisco, for petitioner.

Joseph F. Murphy, San Francisco, for respondents.

GIBSON, Chief Justice.

Petitioner recovered a judgment against George O'Brien in the sum of $2,000 pursuant to a jury's verdict in an action for personal injuries. On O'Brien's motion for a new trial the following order was made: 'Motion for new trial denied. Judgment reduced to $1,250.00.' No appeal was taken from either the judgment or the order, and, after the time for appeal had expired, petitioner instituted this proceeding for a writ of mandate to compel respondent court to strike from its records that portion of the order which reduced the judgment, contending that the order, or the portion reducing the judgment, is void and beyond the jurisdiction of the court.

The first question to be determined is whether petitioner had another adequate remedy. Section 1086 of the Code of Civil Procedure provides that the writ of mandate 'must be issued in all cases where there is not a plain, speedy, and adequate remedy, in the ordinary course of law.' ¹ Although the statute does not expressly forbid the issuance of the writ if another adequate remedy exists, it has long been established as a general rule that the writ will not be issued if another such remedy was available to the petitioner. Irvine v. Gibson, 19 Cal.2d 14, 118 P.2d 812; People ex rel. Smith v. Olds, 1853, 3 Cal. 167, 58 Am.Dec. 398. The burden, of course, is on the petitioner to show that he did not have such a remedy.

An appeal is the usual course open to a litigant who believes that the trial court has committed error. The order reducing the judgment from $2,000 to $1,250 was a special order after final judgment, and as such it would ordinarily be appealable under subdivision 2 of section 963 of the Code of Civil Procedure which provides that an appeal may be taken 'from any special order made after final judgment.' See Balaam v. Perazzo, 211 Cal. 375, 381, 295 P. 330. It appears, however, that there are conflicting lines of cases, none of which has been overruled, upon the question whether an appeal will lie from a special order after final judgment where the court was without power to make the order. ² Since petitioner claims that the order here is void, we must decide whether it was reviewable by appeal.

It has long been the general rule in this state that where the law allows an appeal from a judgment or order, it is appealable even though void. Shrimpton v. Superior Court, 22 Cal.2d 562, 139 P.2d 889; Ivory v. Superior Court, 12 Cal.2d 455, 459-461, 85 P.2d 894; Casner v. Daily News Co., 12 Cal.2d 402, 84 P.2d 1032; Ewing v. Richvale Land Co., 176 Cal. 152, 167 P. 876; Hildebrand v. Superior Court, 173 Cal. 86, 159 P. 147; Anglo-Californian Bank v. Superior Court, 153 Cal. 753, 96 P. 803; White v. Superior Court, 110 Cal. 54, 57, 42 P. 471; Stoddard v. Superior Court, 108 Cal. 303, 41 P. 278; Dyerville Mfg. Co. v. Heller, 102 Cal. 615, 36 P. 928; In re Bullock's Estate, 75 Cal. 419, 17 P. 540; Livermore v. Campbell, 52 Cal. 75.

Prior to 1927 special orders made after final judgment were treated as being within the scope of this general rule. White v. Superior Court, 110 Cal. 54, 42 P. 471; Stoddard v. Superior Court, 108 Cal. 303, 41 P. 278, order held appealable either as an order after final judgment or as an injunction; Livermore v. Campbell, 52 Cal. 75; Dyerville Mfg. Co. v. Heller, 102 Cal. 615, 36 P. 928 (no discussion); Estate of Dunsmuir, 149 Cal. 67, 84 P. 657 (no discussion). In these cases no attempt was made to distinguish one type of void order from another, and the White and Livermore cases flatly refused to consider whether the trial court had jurisdiction, denying certiorari upon the ground that in any event an appeal was available. In 1927, however, Stanton v. Superior Court, 202 Cal. 478, 261 P. 1001, without citing the prior decisions, departed from the general rule and commenced a new line of cases which deny the right to appeal from certain types of void special orders made after final judgment. There the trial court had granted motions to vacate judgments in favor of defendants in two actions, and subsequently it signed two new judgments likewise in favor of defendants but containing more limited provisions. This court granted a writ of certiorari annulling the new judgments and the orders vacating the original judgments. It held that the orders and subsequent judgments were void because (1) they were not within the inherent power of the trial court, (2) there was no basis for a proceeding under section 473 of the Code of Civil Procedure, and (3) the proceedings were not authorized by section 663 of that code.

In answer to the contention that certiorari would not lie because an appeal was available under sections 663a and 963 of the Code of Civil Procedure the court in the Stanton case said 202 Cal. at pages 488-489, 261 P. at pages 1004: 'As above stated, these purported orders and subsequent purported judgments are hybrids in our procedure. Orders and judgments which fail to conform to any of the rules of procedure cannot be said to be appealable under section 663a. * * * We are also satisfied that neither of these orders or subsequent judgments can be said to be special orders made after final judgment within the meaning of section 963 of the Code of Civil Procedure, because such section contemplates orders given by a court having jurisdiction to act.' (Italics added.) The court incorrectly cited Diamond v. Superior Court, 189 Cal. 732, 739, 210 P. 36, as being similar, since the order involved in that case was held not appealable for the reason that an amendment to the code had terminated the right to appeal. The court also cited Dolan v. Superior Court, 47 Cal.App. 235, 190 P. 469, and Prothero v. Superior Court, 196 Cal. 439, 238 P. 357, but these cases did not consider the rule that certiorari will not lie if an appeal is available.

Since the Stanton decision in 1927 some cases have followed it, some have distinguished and limited it, others have seemingly ignored it, and a number have cited and followed the older line of cases. Cases which have either followed it or cited it with approval are: Whitley v. Superior Court, 18 Cal.2d 75, 82, 113 P.2d 449; Treat v. Superior Court, 7 Cal.2d 636, 62 P.2d 147; Lankton v. Superior Court, 5 Cal.2d 694, 696-697, 55 P.2d 1170 (prohibition case); People v. Superior Court, 4 Cal.2d 136, 47 P.2d 724; Carlon v. Superior Court, 2 Cal.2d 17, 22, 38 P.2d 149, may be distinguishable on ground order not appealable because not a final judgment; Felton Chemical Co. v. Superior Court, 33 Cal.App.2d 622, 92 P.2d 684, (no discussion); Quevedo v. Superior Court, 131 Cal.App. 698, 21 P.2d 590, 6 P.2d 1007. The Whitley and 590, 6 P.2d 1007. The Whitely and Treat cases contain very broad language indicating that certiorari will lie to annul an order after final judgment whenever the order is made contrary to the authority conferred by a procedural statute or whenever the trial court lacked the power to act as it did. See 18 Cal.2d at page 82, 113 P.2d 449; 7 Cal.2d at page 638, 62 P.2d 147.

The Stanton case was distinguished in Shrimpton v. Superior Court, 22 Cal.2d 562, 566-567, 139 P.2d 889, 891, which held that an order 'rendered in pursuance of section 473' was appealable, and not reviewable by certiorari, whether or not it was invalid, and the court in effect limited the Stanton rule to orders which were 'not in pursuance of any of the prescribed methods of procedure as defined by the Code of Civil Procedure.' See also Ivory v. Superior Court, 12 Cal.2d 455, 85 P.2d 894. The Stanton, Whitley, Treat, and Lankton cases were distinguished without approval or disapproval.

A number of cases, without citing the Stanton decision have cited and followed the older cases and have applied the general rule that an appeal will lie from a void order or judgment. Some of these are directly contrary to the Stanton rule, and some may be contrary depending upon whether, after careful analysis, it can be said that they fall within the distinction set forth in the Shrimpton case. It is unnecessary at this time to do more than list them as examples of the confusion caused by the existence of the two lines of cases. See Casner v. Superior Court, 23 Cal.App.2d 730, 74 P.2d 298, followed, as being law of the case, but with additional citation of the older cases, in Casner v. Daily News Co., 12 Cal.2d 402, 84 P.2d 1032; Colby v. Pierce, 15 Cal.App.2d 723, 59 P.2d 1046; Drapeau v. Superior Court, 5 Cal.App.2d 32, 42 P.2d 728; Coley v. Superior Court, 89 Cal.App. 330, 264 P. 1110; see also Erickson v. Municipal Court, 219 Cal. 737, 740, 29 P.2d 192; Christie v. Superior Court, 218 Cal. 423, 424, 23 P.2d 757.

The Stanton case clearly constituted a departure from the general rule that an appeal may be taken from a void order or judgment, and the criticism which the decision has received seems justified. Both final judgments and special orders after final judgment are made appealable by similar language in section 963 of the Code of Civil Procedure, and no condition that the trial court must have jurisdiction to act is set forth with respect to the appealability of either type of decision. As we have seen, it is undisputed that final judgments are appealable, even though void, and there is no more reason for applying the Stanton rule to void special orders after final judgment than to void final judgments. (See 31 Cal.L.Rev. 576.)

The practical consequences of the Stanton rule are even more unfortunate than the defects in its legal theory. It has led to considerable confusion, and while it has been followed in some cases, others have distinguished it or ignored it. The limitation adopted...