Opinion
3-6-1957
Garlan EPLEY, an Individual doing business under the fictitious firm name and style of Retailers Credit Association, Plaintiff, Cross-Defendant and Respondent, v. Amelia CALIFRO, etc., et al., Defendants and Cross-Complainants, Lena Califro, Defendant, Cross-Complainant and Appellant.* Civ. 8959.
Barbagelata, Zief & Carmazzi and Henry J. Broderick, San Francisco, for appellants. Heenan & Arnoldy, Marysville, for respondent.
Garlan EPLEY, an Individual doing business under the fictitious firm name and style of Retailers Credit Association, Plaintiff, Cross-Defendant and Respondent,
v.
Amelia CALIFRO, etc., et al., Defendants and Cross-Complainants,
Lena Califro, Defendant, Cross-Complainant and Appellant.*
March 6, 1957.
Rehearing Denied April 1, 1957.
Hearing Granted May 1, 1957.
Barbagelata, Zief & Carmazzi and Henry J. Broderick, San Francisco, for appellants.
Heenan & Arnoldy, Marysville, for respondent.
PEEK, Justice.
This is an appeal by defendant and cross-complainant Lena Califro from that portion of an order of the trial court granting the motion of the plaintiff to vacate a previous minute order of the court dismissing the action as against herself. The defendant Mareck has not appealed.
From the pertinent portions of the record on appeal (which consists solely of the clerk's transcript) it appears that by his complaint, filed on March 22, 1951, plaintiff as assignor of the California Engineering & Surveying Service, sought to recover from the defendants on an open book account. On December 14, 1951, an answer and cross-complaint was filed by the defendants wherein Thomas T. Califro appeared in propria persona and as attorney for the other two defendants, Lena Califro and Andy Mareck. On September 30, 1952, an answer to the cross-complaint was filed. The cause did not come on for trial until July 21, 1955, or more than three years after service of summons on the defendants. The minutes of the court show that the only appearance was made by counsel for Amelia Califro, administratrix of the estate of Thomas; that 'the court ordered said action dismissed as to Defendants Andy Mareck and Lena Califro * * * according to Section 581a of the Code of Civil Procedure'; that the cause was then heard on its merits; that various documents were introduced in evidence and witnesses were sworn on behalf of plaintiff and the remaining defendant; and that the cause was then ordered to be submitted upon the filing of briefs by the respective parties.
Thereafter on July 29, 1955, plaintiff filed his motion to vacate the prior order of submission and dismissing the action as to the defendants Andy Mareck and Lena Califro, and in support thereof an affidavit of Mr. Arnoldy, one of plaintiff's counsel, was filed. In said affidavit it was averred that subsequent to the submission of the cause, the affiant further examined the file in said action and discovered that Thomas T. Califro had filed an answer and cross-complaint on behalf of himself and the other defendants and prayed that the court vacate its order dismissing the defendants Mareck and Lena Califro from said action. Neither Lena Califro nor Andy Mareck were served with notice of plaintiff's motion. On October 14, 1955, the court made its order wherein it noted that the previous order dismissing the action as to Lena Califro and Andy Mareck had been made 'inadvertently'; that notice of plaintiff's motion had not been served upon the defendants Lena Califro or Andy Mareck or their attorneys; that the only appearance was by counsel for Amelia Califro as administratrix of the estate of Thomas Califro; that plaintiff's motion had been submitted upon counsel's affidavit and the record and proceedings taken in said action, from which the court concluded that said order should be entered setting aside the previous order. It is from this order that Lena Califro now appeals.
Section 581a of the Code of Civil Procedure provides in part that:
'All action, heretofore or hereafter commenced, must be dismissed by the court in which the same may be pending, on its own motion, or on the motion of any party interested therein, if summons has been served, and no answer has been filed, if plaintiff fails, or has failed, to have judgment entered within three years after service of summons, except where the parties have filed a stipulation in writing that the time may be extended.'
However, independent of statutory provisions, it has long been the rule that, '* * * the court has power to correct mistakes in its proceedings, and to annul, within a reasonable time, orders and judgments inadvertently made. * * * Where the judgment of a court has been deliberately exercised in a cause, and a final result reached as a conclusion thereof, there are good reasons why it should not be disturbed, except by the formal methods prescribed by statute; but rulings, orders, and even judgments inadvertently made are not the result of judgment, but of oversight, neglect, or accident, and are subject to correction by the judge or court making them.' Wiggin v. Superior Court, 68 Cal. 398, 402, 9 P. 646, 648; see also Hall v. Polack, 42 Cal. 218.
Thus it was held in Krug v. Meehan, 108 Cal.App.2d 416, 417, 239 P.2d 46, 47, a case not wholly unlike the present, that where an appeal had been dismissed as being premature under a mistaken assumption that the issues raised by a cross-complaint had not been disposed of when, as a matter of fact, the cross-complaint has been dismissed, the court properly vacated the order of dismissal concluding that under the circumstances it not only had '* * * the inherent power but the duty to vacate its former judgment.' Also, where in an action for unlawful detainer a writ of restitution signed by the judge who tried the case was thereafter ordered recalled by another judge, it was held not to be an abuse of discretion of the latter to set aside and vacate the order made by him and restore the original order, since he did not know at the time he made the former order that relief of similar effect had been denied by the judge who tried the case at the time that judge issued the original writ of restitution. Watkins v. McCartney, 70 Cal.App. 137, 232 P. 982. A similar conclusion was reached in Bastajian v. Brown, 19 Cal.2d 209, 120 P.2d 9, where the trial court signed findings of fact under the mistaken belief that they had been served on the opposing party as provided in section 634 of the Code of Civil Procedure. There the court held that under the inherent power of the court, it can vacate and correct its judgments which are improvidently or inadvertently made. See also Robson v. Superior Court, 171 Cal. 588, 154 P. 8.
It is quite apparent from the record before us that when in the present case the court on its own motion dismissed the action as to Lena Califro and Andy Mareck pursuant to section 581a of the Code of Civil Procedure, it did so under the mistaken impression that no appearance had been made by them, when in truth the record then before the court disclosed that both defendants had appeared by way of answer and cross-complaint. This conclusion is further strengthened by the order of the court in granting the motion to vacate its earlier order when at the very outset thereof it was stated that such order had been 'inadverently' made.
Since the action taken by the trial court herein would appear to be within the rules enunciated as regards the inherent power of the court to correct such mistakes, it necessarily follows that notice was not necessary to the validity of the final order. Morgan v. State Board of Equalization, 89 Cal.App.2d 674, 677, 201 P.2d 859.
The order is affirmed.
VAN DYKE, P. J., and SCHOTTKY, J., concur. --------------- * Opinion vacated 323 P.2d 91.