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ed on the first ground, was permissible under sections 663 and 663a of the Code of Civil Procedure. Those sections do not provide for setting aside a judgment on the ground of inadvertence. Relief from judgments entered through inadvertence, surprise, or excusable neglect must be sought by a motion made under section 473 of the Code of Civil Procedure. The record here does not show what the moving papers were, nor what showing was made when the motions were presented.

always correct its minutes so that they shall speak the truth. Garoutte v. Haley, 104 Cal. 497, 38 Pac. 194.

[3] Assuming that there was a mere ministerial inadvertence in omitting the order of submission of the motion for a new trial, it does not appear that the judicial function of determining that motion was exercised in any way until February 25, 1920. This was more than three months after the service of notice of the entry of the judgment on November 19, 1919. The failure of the court to Both motions, together with a cross-motion determine the motion for a new trial before for additional attorney's fees, were presented the expiration of the statutory period had to the court on January 30, 1920, the case the effect of a denial of the motion. Code having been transferred from the depart- | Civ. Proc. § 660; Estate of Waters (Sup.) 185 ment of the superior court in San Francisco, Pac. 951; San Francisco, etc., Rys. v. Supewhere it was first tried to another depart- rior Court, 172 Cal. 544, 157 Pac. 604. ment presided over by a different judge.

The minute order made on January 30, 1920, did not mention the presentation or submission of the defendant's motion for a new trial. It stated that the defendant's motion to vacate the judgment was submitted and taken under consideration, and that the plaintiff's motion for counsel fees was similarly submitted. On February 13, 1920, a minute entry was made. It recited that, the court having considered and being fully advised concerning defendant's motion to vacate the judgment, it is ordered that the motion be granted as to the property rights of the parties. If the court had considered that motion as one made pursuant to section 473 of the Code of Civil Procedure on the ground of inadvertence in the signing of the findings, the order would necessarily have set aside the entire judgment. Since it was limited to that portion of the judgment relating to the property rights, it must have been considered by the trial court as having been made under sections 663 and 663a of the Code of Civil Procedure. It is to be noted that this order did not direct the entry of any other judgment. It was also ordered that plaintiff's motion for counsel fees be denied. There was no reference to the motion for new trial.

[4] It is stated in the affidavit of the attorney for the respondent, Dolan, that on February 13, 1920, the court made and gave its order granting the motion for a new trial as to the property rights of the parties. This statement contradicts the order of February 25. If the trial court in fact made the order granting the new trial on February 13, and by the later order sought only to correct the inadvertence of the clerk, it would no doubt have said so, as it did in regard to the order of submission, and it would not in terms and by the most apt language have made a new order granting a new trial, nor ordered the new order to be entered nunc pro tunc. On certiorari this court is bound by the record, particularly when, as here, the respondent court and judge stand upon it. City of Los Angeles v. Young, 118 Cal. 295, 50 Pac. 534, 62 Am. St. Rep. 234; Borchard v. Board of Supervisors, 144 Cal. 14, 77 Pac. 708. Upon the record before this court it is concluded that the order of February 25 in so far as it purported to grant a new trial on certain issues was beyond the jurisdiction of the superior court and void. The motion for a new trial was terminated by the expiration of the time limited for its consideration.

What has been said concerning the ineffectiveness of the affidavit to contradict the

On February 25, 1920, two minute orders record certified gains force in considering were made, the first reading:

"It appearing to the satisfaction of the court that the order heretofore made herein on the 30th day of January, 1920, to wit, submitting the defendant's motion for a new trial having been inadvertently not entered, it is by the court ordered that the entry of said order be made this day nunc pro tunc, as of the 30th day of January, 1920. And it is further ordered that said defendant's motion for a new trial be, and the same is hereby, granted as to the property rights of the said parties to the said action, otherwise said defendant's motion stands denied, and it is further ordered that said order be entered this day nunc pro tunc as of February 13, 1920."

[2] The first clause of this order was clear

the effect of another order made on February 25. It is as follows:

"It appearing to the satisfaction of the court that the order heretofore made and entered on the 13th day of February, 1920, to wit, granting the defendant's motion for an order vacating the judgment and decree heretofore entered herein, and based on the findings of fact made by said court as to the property rights having been inadvertently made, it is by the court ordered that said order be, and the same is hereby, vacated and set aside, and it is further ordered that said defendant's motion * * * be and the same is hereby denied, and it is further ordered that said order be entered this day nunc pro tunc as of February 13, 1920."

A reading of this order in connection with

(190 P.)

can leave no doubt upon the question con- [diction of the trial court. Section 663 of the cerning what orders were made on February Code of Civil Procedure provides that a 13, nor that when the court reconsidered them on February 25 the judge concluded and quite clearly stated that he made the order vacating the judgment, and did not make the order granting a new trial on February 13, although he may have intended to do just what he attempted to do on February 25.

judgment may be set aside and another and different judgment entered when the findings do not support the conclusions of law, and, that when the judgment is set aside, the con clusions of law shall be amended and corrected. Code Civ. Proc. § 663. The notice of motion is required to specify the particulars in which the conclusions of law are not con[5] Because of the action of the trial court sistent with the findings, and an order grantin making the order purporting to vacate the ing the motion may be reviewed on appeal. order setting aside the judgment in part, it Code Civ. Proc. § 663a. These Code proviis deemed proper for the information of the sions are consistent with the rule that litigatrial court and of counsel to state the views tion must not be piecemeal. If the original of this court in regard thereto, in order that judgment is correct, the party in whose favor there may be no misconception of the effect it was is entitled to have it enforced, and if of this decision. The second order purport- it is not supported by the findings, the other ing to set aside the order vacating the judg- | party is entitled to have another and correct ment was invalid if the first order be consid- judgment entered. In either case the loser ered as having any effect. Assuming the is given the right of appeal. The Code secvalidity of the first order, it was subject tions do not permit two motions to be made, only to be set aside on appeal or under prop- nor two orders, one setting aside the judg er proceedings under section 473 of the Code ment, and another at a later day directing of Civil Procedure. After a court has acted the entry of a different judgment. If on the judicially it may not seek to correct its own motion it appears to the court that the finderrors by changing its judgments and or- ings require the judgment to be set aside, it ders without notice to the parties affected. must also appear what conclusions of law Such action would very shortly deprive all should be made on the facts, and the only judgments of their character of finality. order within the power of the court under Lang v. Superior Court, 71 Cal. 491, 12 Pac. these circumstances is one setting aside the 306, 416; Carpenter v. Superior Court, 75 judgment and directing as a part of the Cal. 596, 19 Pac. 174; Holtum v. Grief, 144 same order the entry of another judgment. Cal. 521, 78 Pac. 11; United Railroads v. It is from such an order only that an appeal Superior Court, 170 Cal. 760, 151 Pac. 129, is provided. An order merely setting aside Ann. Cas. 1916E, 199; Gill v. Peppin, 182 the judgment and leaving the case undeterPac. 815. If the order was improvidently mined is void and not merely erroneous. made, upon a proper showing and on notice Any other rule might lead to interminable it may be set aside, but the court cannot delays and the loss of important rights by without notice and upon no showing justify a litigants. On such a motion the court has review of its own judicial act by a mere re- no power to consider or determine any mafcital that it made the first order inadvertent- ter except what judgment should be entered ly. In this case there does not appear to upon the facts as found. Swift v. Occidenhave been either notice given the petitioner tal, etc., Co., 141 Cal. 166, 74 Pac. 700; Dahlof the contemplated action of the court or any berg v. Girsch, 157 Cal. 325, 107 Pac. 616; showing of inadvertence other than that the Hole v. Takekawa, 165 Cal. 372, 142 Pac. 445. trial court determined on second thought that it was in error when it first acted. If the first order was a valid exercise of the power of the court, under section 663 of the Code of Civil Procedure the second order was be yond the jurisdiction of the court.

[7] A void order may be swept aside whenever it comes before a court, and the order vacating the judgment without directing what judgment should be entered was such an order. Upon the present state of the record the original judgment stands unaffected by the subsequent proceedings, unless it be modified or set aside on appeal or in some other way permitted by the statutes.

The order granting the new trial and the order vacating the judgment respectively are annulled.

[6] The validity of the order vacating the judgment depends upor whether or not it is within the powers defined in sections 663 and 663a of the Code of Civil Procedure. Without the decision it is impossible to determine whether this objection to the judgment was well taken or not, and in support of the action of the trial judge, for the present purpose it must be assumed that it was. Justice NOURSE, having rendered the It does not follow, however, that the order judgment attacked in the proceeding herein vacating the judgment was within the juris-reviewed, does not participate in the decision.

I concur: LANGDON, P. J.

(47 Cal. App. 270)

KINDERMAN v. SHIPLEY. (Civ. 2678.)

District Court of Appeal, Second District,
Division 2, California. April 30, 1920.)

1. Judgment 714(3)-Judgment for land-
lord in action defended on ground of breach
of lease held conclusive.

Judgment for landlord in action for one month's rent in which tenant defended on ground that landlord had wrongtully closed up entrance, thereby breaching lease and entitling tenant to vacate premises, was conclusive in subsequent action for accrued rentals under such lease, in which tenant pleaded the closing up of such entrance as a defense and by way of counterclaim for damages.

2. Judgment 714(1)—Judgment conclusive in subsequent action between same parties involving same question.

A former judgment between the same parties is conclusive, not only as to the subjectmatter in controversy in the action upon which it is based, but also in all other actions involving the same question.

3. Appeal and error 766-On appeal under alternative method failure to print portions of record held not to warrant dismissal of appeal.

On appeal under the alternative method, appellant's failure to print in her brief or in a supplement thereto such portions of record as she desired to call to the court's attention did not warrant dismissal of the appeal, under Code Civ. Proc. § 953c, as amended by St. 1919, p. 261, since court finds it preferable to examine the typewritten record rather than require a supplement to be prepared.

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The sole question presented on this appeal is as to the correctness of the holding of the trial court that the issue of fact raised by defendant's answer and cross-complaint was res judicata.

The former action was brought in a justice's court to recover one month's rent under the lease for the sum of $90. Judgment was against the defendant, who appealed to the superior court, and a trial de novo was there had. The issue raised by the answer was pleaded as follows:

"(2) Defendant, further answering and for defense herein, alleges that at the time said agreement was entered into and she took possession of said premises from North Main street, which was the main entrance to the same, the same being designated as No. 337 No. Main street, as set out in said agreement, which fact was the reason for defendant entering into said agreement, but that after defendant had so entered into said agreement and had taken possession of said premises, and against the will and protests of said defendant, said entrance was wrongfully closed up and taken out by plaintiff or his lessor, which was a breach of the conditions of said agreement, and said entrance was made into a store on the ground floor and rented to other parties.

"(3) That the defendant depended and relied in entering into said agreement entirely upon the fact that the said premises had said entrance to said Main street; the other entrance

Appeal from Superior Court, Los Angeles to same to New High street being obscure and County; Louis Myers, Judge.

Action by S. Kinderman against Virginia Shipley. Judgment for plaintiff, and defendant appeals. Affirmed.

E. V. Chavez, of Los Angeles, for appellant. J. J. Wilson, L. A. Lewis, and Haas & Dunnigan, all of Los Angeles, for respondent.

in the rear of said building.

trance having been so abandoned and taken out, "(4) That by reason of said Main street enthe said agreement became forfeited, inoperative, and void, and the defendant became great

ly damaged, and the said premises became enthe purpose for which the same were leased, tirely worthless and ruined and worthless for and that by reason thereof defendant did, and was compelled to vacate and surrender the same to plaintiff."

SLOANE, J. The plaintiff brought this action to recover from the defendant $940 accrued rentals under a lease by plaintiff to de- In its decision against defendant the supefendant of a rooming house in the city of Los | rior court found that prior to the negotiations Angeles. Defendant admitted the execution of the lease in question there had been au of the lease, and that the rental was unpaid, entrance to the premises in question as allegbut denied liability, and sought to recovered by defendant, but that during the negotiadamages upon her counterclaim. The de- tions leading up to the execution of the fense and cross-action is based upon the al- lease such entrance to the premises was beleged fact that after the execution of the ing closed, and that certain employés of the lease for a term of years the plaintiff closed plaintiff were engaged in closing up this enup one of the main entrances to the premises trance and removing the stairway leading from the public street, thus greatly reducing from Main street into the said premises; the value of the use of the premises, and de- that prior to the time of the execution of said stroying the profits of defendant's leasehold. lease the entrance had been closed and abandoned, and the stairway removed; that in the execution of the lease the parties to the lease, being the plaintiff and defendant, contemplated and understood that there was to

On the trial before a jury the court instructed the return of a verdict for plaintiff, and against the defendant on her counterclaim, upon the introduction of the judgment

(190 P.)

The judgment is affirmed.

We concur: FINLAYSON, P. J.; THOMAS, J.

(47 Cal. App. 224)

be no entrance to said premises from Main | permit of a dismissal of the appeal; and we street; and that at the time the lease was find it preferable to examine the typewritten executed and defendant entered into posses- record rather than require a supplement to sion of the premises there was no entrance be prepared. from Main street. The court further found that the allegations of paragraphs 2, 3, and 4 of the answer herein set forth were untrue, and that the defendant, with full knowledge that said entrance did not exist, and for the purpose of ratifying the lease, caused the lease to be acknowledged, and thereafter placed it of record in the records of Los Angeles county. The defendant thereafter abandoned the premises and defaulted in all further payments of rent, and this action was brought some two years later by the plaintiff. to recover damages in the sum of $940 for breach of the covenant to pay rent. The defendant, by way of defense and counterclaim, set up, in substantially the same language as in the defense to the former action, the facts there alleged as to the existence and subsequent closing of the Main street entrance, and claimed damages in the sum of $17,700.

PEOPLE v. COTA. (Cr. 702.) (District Court of Appeal, Second District, Division 1, California. April 27, 1920.)

Criminal law 535 (2)-Evidence aside from confession held to show entry in nighttime.

Evidence that the entry was effected between S in the evening and 8 the following morning, and that accused at 11 in the evening had property in his possession similar to that taken, held sufficient to establish the corpus delicti of burglary in the first degree, so that defendant's admission that he committed the crime between 10 and 11 in the evening was competent.

2. Criminal law 1172 (6)—Instruction allowing conviction of burglary on proof of intent not charged in indictment held not prejudicial.

In the prosecution for burglary in the first degree, an instruction defining burglary in the language of Pen. Code, § 459, us entry with intent to commit larceny or any felony was not prejudicial, though the information charged entry to commit larceny only. where there was no evidence to show intent to commit any other felony than larceny.

3. Burglary 46(1)-Instruction as to first degree burglary held correct.

[1, 2] We think it is clearly apparent that the defendant is estopped by the former decree and judgment from setting up this defense and cause of action on counterclaim. It is true that the relief sought here by defendant is not precisely the same as in the former action, but the right of defendant to relief depends upon precisely the same issue of fact that was tried in the former case and determined adversely to defendant's contention. The question of debarring defendant's right to plead a counterclaim in the present case because of not having presented such claim in the former trial is not involved. It is merely that the issue of fact which she now relies upon for her defense and recovery of An instruction that the information charged damages has heretofore been tested and ad- burglary in the first degree, that before jury judged untrue in a trial by a competent court could convict they must be satisfied beyond between the same parties; and the law de- reasonable doubt that he was guilty as charged clares that as between the parties that ques-vict of burglary in the second degree was a in the information, and that they could not contion was settled once for all. "A former carefully drawn instruction for the protection judgment between the same parties is con- of defendant's rights, of which he cannot comclusive not only as to the subject-matter in plain. controversy in the action upon which it is based, but also in all other actions involving the same question." Bingham v. Kearney, 136 Cal. 177, 68 Pac. 597; Southern Pac. Co. v. Edmunds, 168 Cal. 418, 143 Pac. 597; Curtis v. Upton, 175 Cal. 331, 165 Pac. 935; Koehler v. Holt Mfg. Co., 146 Cal. 337, 80 Pac. 73. The last case cited is particularly in point on the issue here.

[3] Respondent calls attention to the fact that this appeal is brought under the alternative method, and that the appellant has failed to print in her brief or in a supplement thereto such portions of the record as she desired to call to the attention of the court. Such omission, under the amendment of 1919 to section 953c of the Code of Civil Procedure, does not

Appeal from Superior Court, Santa Barbara County; S. E. Crow, Judge.

Joe E. Cota was convicted of burglary in the first degree, and he appeals. Affirmed.

W. P. Butcher, Jr., of Santa Barbara, for appellant.

U. S. Webb, Atty. Gen., Arthur Keetch, Deputy Atty. Gen., and Thomas A. Wood, of Los Angeles, for the People.

SHAW, J. Defendant appeals from a judgment of conviction had upon an information wherein he was charged specifically with the commission of the crime of burglary in the first degree.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

The subject of the theft was a quantity of liquor, consisting of wine and whisky contained in bottles and demijohns, taken from the wine cellar, the door of which was locked, which cellar was situated in the basement of a residence owned by Mr. Gould, entry to which was had by the breaking of a window and the lock on the door of the wine cellar.

One of the essential elements of the crime charged is that it was committed in the nighttime, which in this case was the time between the hour of sunset at 4:54 p. m. on December 2d and the hour of sunrise at 6:46 a. m. on December 3d.

testimony on cross-examination to the effect that he was not out of his house, some hundred yards from the residence so entered, between the hours of 8 o'clock p. m. and 8 o'clock a. m., on said days, and there was an interval of an hour and a quarter of daylight, nevertheless we think the evidence and the inferences fairly deducible therefrom were sufficient to establish beyond a reasonable doubt that the offense was committed as charged. People v. Stevens, 68 Cal. 113, 8 Pac. 712; People v. Schafer, 161 Cal. 573, 119 Pac. 920. This being true, it follows that the court did not err in admitting the evidence of defendant's confession, which, if true, shows conclusively that he was guilty of the commission of the crime.

[2] In defining burglary, the court, in its instruction, used the language of section 459, Penal Code, that

Appellant argues that by this instruction, notwithstanding the charge in the information was that of entering the house with the intent to commit larceny only, the jury was authorized to convict defendant if they found

he had entered the house with intent to com-
Peo-

mit any felony, and hence it was error.
ple v. Mulkey, 65 Cal. 501, 4 Pac. 507; People
v. Young, 65 Cal. 225, 3 Pac. 813; Williams
v. State, 53 Tex. Cr. R. 2, 108 S. W. 371. Con-
ceding this to be true, nevertheless, for the
reason that no evidence other than that per-
taining to the offense charged was offered,
defendant could not have been prejudiced by

[1] Evidence of statements made by the defendant wherein he admitted his participation in the crime, which, he stated, was committed between 10 and 11 o'clock p. m. on the night of December 2d, was received over defendant's objection, and this ruling is assign"Every person who enters any house, room, ed as error. His contention is that the re-apartment, tenement, shop, warehouse, store, ception thereof was not preceded by proof of mill, barn, stable, outhouse or other building, the corpus delicti, namely, that the crime tent, vessel, railroad car, mine, or any underwas committed in the nighttime, and without ground portion thereof, with intent to commit which the evidence was not admissible. Peo- grand or pettit larceny or any felony is guilty ple v. Vertrees, 169 Cal. 404, 146 Pac. 890; of burglary." People v. Tapia, 131 Cal. 651, 63 Pac. 1001; Gray v. Commonwealth, 101 Pa. 380, 47 Am. Rep. 733. Conceding that it devolved upon the people to show by independent evidence and beyond a reasonable doubt that the specific crime charged was committed (People v. Smith, 136 Cal. 207, 68 Pac. 702), as a con. dition of admitting the confession in evidence, we think such fact was established. It was made to appear by testimony of the caretaker of the place, who lived in a house about 100 yards from the Gould residence, that the crime was committed between the hours of 8 o'clock p. m., December 2d. and shortly before 8 o'clock a. m., December 3d, at which latter time he discovered the broken window to the basement, together with the fact of the theft, and, following tracks leading from the window, he found in a hedge of trees a number of bottles containing liquor, which bottles were similar to those contained in the cellar. On the night of December 3d the sheriff stationed himself near the cached liquor, and about 10:30 o'clock defendant appeared with a sack under his coat, when he was arrested. It also appeared from the testimony of another witness that between 10 and 11 o'clock on the night of December 2d the defendant, accompanied by another party, came to his house and left some demijohns of whisky, which demijohns were identified as being similar to those which the caretaker had assisted in taking to the basement of the residence, in addition to which the caretaker testified in direct terms that the entry was made and the goods taken between sunset and sunrise; and, conceding that his evidence upon this point was shaken by his

reason of the error.

[3] The court instructed the jury that—

"The information charges burglary in the first degree, and before you can convict the defendant you must be satisfied from the evidence to a moral certainty and beyond a reasonable doubt that he is guiity as charged in the information, to wit, of burglary in the first degree, committed at the place charged in the information and between sunset on December 2, 1919, and sunrise on December 3, 1919. You cannot in this case render a verdict of burglary in the second degree."

It would be difficult to conceive of an instruction prepared with greater care, and having for its purpose the protection of defendant's rights, than the one quoted; and it is impossible to understand, even in the light of appellant's argument, any ground whatsoever for the attack thereon.

Other alleged errors predicated upon rulings of the court in permitting the district attorney, over defendant's objection, to ask leading questions of one witness, and its rul

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