Wexler v. Goldstein

• Decision Date: 30 November 1956
• Docket Number: No. 16992,16992
• Citation: 146 Cal.App.2d 410,304 P.2d 41
• Court: California Court of Appeals Court of Appeals
• Parties: Louis E. WEXLER, David D. Wexler and Wexler & Wexler, Plaintiffs, Cross-Defendants and Appellants, v. Joseph GOLDSTEIN, Defendant, Cross-Complaint and Respondent.

Page 41

304 P.2d 41

146 Cal.App.2d 410

Louis E. WEXLER, David D. Wexler and Wexler & Wexler, Plaintiffs, Cross-Defendants and Appellants, v. Joseph GOLDSTEIN, Defendant, Cross-Complaint and Respondent.

No. 16992.

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

Nov. 30, 1956.

Louis E. Wexler, David D. Wexler, Wexler & Wexler, Millbrae, for appellants.

Dodd M. McRae, San Francisco, for respondent.

AGEE, Justice pro tem.

This action was originally commenced in the municipal court to recover a money judgment for legal services rendered to defendant by plaintiffs, who are attorneys. Defendant cross-complained for an amount in excess of $3,000. The municipal court thereupon properly transferred the action to the superior court. C.C.P. 396, par. 2. In due course, defendant filed a second amended cross-complaint, containing two counts. The first count sought a money judgment for $220.91. The second count was for punitive damages in the amount of $4,000. Plaintiffs' general demurrer to this second count was sustained, with ten days' leave to amend upon notice. Such notice was given on October 28, 1954. Defendant never took any action to amend his second count. Plaintiffs filed an answer to the first count of the cross-complaint. Defendant, having apparently abandoned his second count, then moved to transfer the action back to the municipal court on the ground that the issues as now framed by the pleadings were within the exclusive jurisdiction of that court. This motion was denied and the action went to trial before the superior court, sitting without a jury, on April 26, 1955. Judgment was rendered on June 16, 1955, in favor of plaintiffs for $1,584.43. Defendant moved for a new trial. On July 29, 1955, while this motion was pending, the court made a nunc pro tunc order, as of April 26, 1955, dismissing the second count of the defendant's cross-complaint for his failure to amend. On August 1, 1955, the court made an order granting a new trial and an order remanding the action to the municipal court. Plaintiffs appeal from both orders.

The trial judge in his order of August 1, 1955, granting the new trial stated the ground upon which the new trial was being granted to be as follows: 'The Court is convinced that it was without jurisdiction to try the above-entitled cause, when no action had been taken after an Order had been made, sustaining the Demurrer to the second cause of action. Therefore the Motion for New Trial is granted.' The next paragraph of his order recites the request of plaintiffs for an order of dismissal of the second count of the cross-complaint nunc pro tunc as of April 26, 1955, and concludes as follows: 'We * * * have signed such an order nunc pro tunc.' (Emphasis added.) Defendant contends that the trial court must have first granted the new trial on the ground stated and then ordered the nunc pro tunc dismissal. Thus, defendant argues, the error in trying the case when it was not at issue as to the second count of the cross-complaint had not been cured at the moment when the ruling on the motion for a new trial was made. We think defendant is in error for two reasons. First, the order of dismissal is dated July 29, 1955, whereas the order granting a new trial is dated August 1, 1955. Second, the order of August 1, 1955, recities that 'We * * * have signed such an order [of dismissal] nunc pro tunc.'

A nunc pro tunc order is a retroactive entry by the court. It is effective at the date which the court states it is to be effective, not at the date it was made. It is an exercise of inherent power of the court for the purpose of doing justice between the parties. Leavitt v. Gibson, 3 Cal.2d 90, 103, 43 P.2d 1091. The order in question was made effective as of April 26, 1955, the date of the trial. The legal effect of such order was to dispose of the issues raised by the second count of the cross-complaint as of that date. Hence, the stated ground upon which the new trial was granted did not then exist.

The propriety of the nunc pro tunc order in the situation involved herein is apparent and, indeed, is not questioned by either side. The case was a simple one between two attorneys and their former client to determine how much was owed by whom. A judgment was rendered after a trial on the merits. Defendant had failed for a period of months to amend his second count and had asked the superior court to transfer the action back to the municipal court on the stated ground 'that the issues framed by the pleadings in said matter are without jurisdiction of said Superior Court and exclusively within the jurisdiction of the Municipal Court.' In a memorandum decision following the trial the trial court made this statement: 'The record shows that the Defendant caused this matter to be transferred from the Municipal Court to Superior Court by the filing of a Cross-complaint which was not urged, even on a trial or on Defendant's brief; and we therefore conclude that the filing of said Cross-complaint was merely a maneuver to bring a Municipal Court case into the Superior Court and, for that reason, costs will be allowed Plaintiffs.' Under the circumstances, the order of July 29, 1955, dismissing said second count as of April 26, 1955, exemplifies the proper exercise of the inherent power of a court to make nunc pro tunc orders for the purpose of doing justice. The order corrected the record so as to reflect the true state of the pleadings at the time of trial and the trial court was in error in basing its order granting a new trial upon the ground stated.

However, an appellate court is not confined to a consideration of the ground upon which the trial court orders a new trial. We will affirm the order if upon the whole record it appears that a new trial should be had and if the ground upon which the order is sustainable was properly specified in the notice of intention to move for a new trial. 4 Cal.Jur.2d, § 539, p. 393; Dynes v. Bekins Van & Storage Co., 175 Cal. 72, 73, 165 P. 12.

One of the specifications of error in the defendant's motion for a new trial is that the trial court was without jurisdiction to hear or determine the case. This requires a consideration of whether the superior court was diversted of jurisdiction by the dismissal of the defendant's second count of the cross-complaint.

The second paragraph of section 396 of the Code of Civil Procedure provides as follows: 'If an action or proceeding is commenced in or transferred to a court which has jurisdiction of the subject matter thereof as determined by the complaint or petition, and it thereafter appears from the verified pleadings, or at the trial, or hearing, that the determination of the action or proceeding, or of a counterclaim, or of a cross-complaint, will necessarily involve the determination of questions not within the jurisdiction of the court, in which the action or proceeding is pending, the court, whenever such lack of jurisdiction appears, must suspend all further proceedings therein and transfer the action or proceeding * * * to a court having jurisdiction thereof * * *.' (Emphasis added.)

The plain meaning of this paragraph, standing alone, is that if at any time, up to and including the trial, the court in which the action is then pending finds that its decision on the action will necessarily involve a determination of a question not within its jurisdiction, it must transfer the action to a court having jurisdiction.

It is this provision that made it mandatory upon the municipal court to transfer the action to the superior court upon the filing...