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Joaquin & Kings River Canal & Irr. Co. v. Stevinson, 30 Cal. App. 405, 158 Pac. 768.

2. The determination of a jury of some single isolated issue of fact in a case is not "the trial by jury" referred to in this section where there remains other issues undisposed of.-San Joaquin & Kings River Canal & Irr. Co. v. Stevinson, 30 Cal. App. 405, 158 Pac. 768.

3. In condemnation proceedings the ques tions of use and necessity are exclusively for the court to determine and these are issues of fact, though withheld from the jury, and must be determined by the court before final judgment of condemnation can be entered, and until found upon by the court there is no "trial" as contemplated by this section.—San Joaquin & Kings River Canal & Irr. Co. v. Stevinson, 30 Cal. App. 405, 158 Pac. 768.

4. As to sufficiency of notice of intention.-A notice stating the intention to move "to vacate and set aside the judgment," etc., and specifying four of the grounds mentioned herein is sufficient notwithstanding it is directed against the judgment rather than the decision.-Hoover v. Wolfe, 167 Cal. 337, 139 Pac. 794.

5. A notice of intention to move for a new trial is not ineffectual because the intention as stated was "to move the above entitled court to vacate the judgment entered," etc., whereas the word "decision" instead of "judgment" is used in the code. Fearon V. Fodera, 169 Cal. 370, Ann. Cas. 1916D 312, 148 Pac. 200.

6. Where the plaintiff moved for a new trial because of the inadequacy of the damages under the evidence, if the specification of the ground was sufficient to enable the opposing counsel to determine what evidence should be put in the statement, and the judge to strike out redundant and useless matter, it is enough.—Taylor v. Northern Elec. R. Co., 26 Cal. App. 765, 148 Pac. 543.

7. Filing notice. A notice of intention to move for a new trial must be filed as well as served within the time prescribed by the code, and the trial court is without juris diction, under section 473 of the Code of Civil Procedure, to relieve a party from the consequences of such a failure.-Neale v. Morrow, 174 Cal. 49, 161 Pac. 1165.

8. Serving notice. A notice of intention to move for a new trial served before entry of judgment is premature and a nullity, and does not forbid the appellant from giving a later and proper one. A similar and proper notice served within the ten days, whether or not the appellant had notice of entry of judgment, is not affected by the previous void notice. The Yamato V. Bank of So. Cal., 170 Cal. 351, 149 Pac. 826.

9. In the absence of service on the adverse party of notice of intention to move for a new trial, the lower court has no authority to grant such motion, and the voluntary appearance and consent to the

hearing of the motion, given months after the expiration of the time to serve such notice, do not cure the defect.—Title Ins. & Trust Co. v. California Devel. Co., 171 Cal. 174, 152 Pac. 542.

10. An adverse party is one whose interest in the subject-matter of the motion is adverse to or will be affected by the granting of the motion or changing the former decision of the court.—Title Ins. & Trust Co. v. California Devel. Co., 171 Cal. 174, 152 Pac. 542.

11. While the court can not relieve from a failure to make timely service of notice of intention to move for a new trial, it may relieve from the effect of delay in serving a bill of exceptions.-Haviland v. Southern Cal. Edison Co., 172 Cal. 601, 158 Pac. 328.

12. A proceeding for a new trial is initiated by filing and serving upon the adverse party within a given time a notice of intention to move for a new trial, and the failure to serve the notice upon all adverse parties deprives the superior court of jurisdiction to grant the motion; the failure, however, to serve a given party will not deprive the court of jurisdiction to grant the motion in so far as it can be granted, without affecting the rights of the party not served. -Caruthers Building Co. v. Johnson, 174 Cal. 20, 161 Pac. 985.

13. The "adverse party" upon whom the notice is to be served is "every party whose interest in the subject-matter of the motion is adverse to or will be affected by the granting of the motion or changing the former decision of the court.”—Carruthers Building Co. v. Johnson, 174 Cal. 20, 161 Pac. 985.

14. The party in whom the title to the property had been vested before the motion for new trial was presented has the right to question the service of such notice, although not a party to the action.-Caruthers Building Co. v. Johnson, 174 Cal. 20, 161 Pac. 985.

15. Where all the issues in a case are tried by a jury, the time for serving and filing the notice of intention to move for a new trial begins to run when the verdict was rendered, but where some special issue, not determinative of the case, has been tried by a jury, the time does not begin to run upon the rendition of the verdict upon such special issue, but from the entry of judgment.--San Joaquin etc. Irr. Co. v. Stevinson, 30 Cal. App. 405, 158 Pac. 768.

16. In a proceeding for the condemnation of an easement, where the issue of public use and the issue of public necessity were first heard and determined by the court, and the issue of damages thereafter determined by a jury, the time to file and serve a notice of intention to move for a new trial runs from the time of entry of the findings and judgment, and not from the date of the verdict.--San Joaquin etc. Irr. Co. v. Stevinson, 30 Cal. App. 405, 158 Pac. 768.

$ 660. MOTION TO BE HEARD AT TIME SPECIFIED, OR DISMISSED. The motion for a new trial must be heard at the earliest practicable time after the filing of affidavits and counteraffidavits, in case the motion is made on affidavits, in other cases after the filing of the notice. On such hearing reference may be had in all cases to the pleadings and orders of the court on file, and when the motion is made on the minutes, reference may also be had to any depositions and documentary evidence offered at the trial and to the report of the proceedings on the trial taken by the phonographic reporter, or to any certified transcript of such report, or if there be no such report or certified transcript, to such proceedings occurring at the trial as are within the recollection of the judge; when the proceedings at the trial have been phonographically reported, but the reporter's notes have not been transcribed, the reporter must, upon request of the court, or either party, attend the hearing of the motion, and shall read his notes, or such parts thereof as the court, or either party, may require.

[New trial hearing has precedence.] The hearing and disposition of the motion for a new trial shall have precedence over all other matters except criminal cases, probate matters and cases actually on trial, and it shall be the duty of the court to determine the same at the earliest possible moment. The power of the court to pass on motion for new trial shall expire within three months after the verdict of the jury or service on the moving party of notice of the entry of the judgment. If such motion is not determined within said three months, the effect shall be a denial of the motion without further order of the court.

History: Enacted March 11, 1872; amended March 24, 1874. Code
Amdts. 1873-4, p. 317; by Code Commission, Act March 8, 1901, Stats.
and Amdts. 1900-1, p. 149; Act held unconstitutional, see History,
85, C. C. P.; amended March 20, 1907, Stats, and Amdts. 1907, p. 718,
Kerr's Stats. and Amdts. 1906-7, p. 452; April 24, 1915, Stats, and
Amdts. 1915, p. 202; May 5, 1917, Stats. and Amdts. 1917, p. 240.

In effect July 27, 1917.
TIME OF HEARING MOTION.

v. Southern Cal. Edison Co., 172 Cal. 601, 1. Construction of section.

158 Pac. 328. 2. — Amendment of 1915.

5. A party who fails to serve its notice 3. Constitutionality of section.

of intention to move for a new trial within 4, 5. Failure to serve notice-Effect of.

time is entitled to relief from its default 6, 7. Power of court.

in serving its proposed bill of exceptions

due to an inadvertent entry in its attorneys' 1. Construction of section. The last two

journal of the last day to serve its notice sentences of this section were added by

of intention to move for a new trial, where amendment and designed to secure a speedy

the affidavits of the moving party justify the determination of the motion. The effect of

inference that such party intended at all the statute being that the trial court must

times to appeal from the judgment, as well determine the motion “at the earliest pos

as from any order which might be made sible moment," it is the court's duty to

denying a new trial, and that its purpose do so. The court may, however, grant or

was to make up a record upon which both deny a new trial within three months. —

the judgment and order might be reviewed. Lancel v. Postlethwaite, 172 Cal. 326, 156

-Haviland v. Southern Cal. Edison Co., 172 Pac. 486.

Cal. 601, 158 Pac. 328. 2. -Amendment of 1915. — The amendment of 1915 to this section can not be

6. Power of court. The court may disconstrued as applicable to proceedings on

miss a motion for a new trial when the motions pending at the time it became moving party fails to prosecute. A motion operative.-San Francisco-Oakland Terminal

for a new trial may be brought on for hear. Railways v. Superior Court, 172 Cal. 541, ing by either party. - Robson v. Superior 157 Pac. 604.

Court, 171 Cal. 588, 154 Pac. 8. 3. Constitutionality of section. This sec 7. The superior court upon the ex parte tion is a valid exercise of legislative power. application of the moving party has jurisLancel v. Postlethwaite, 172 Cal. 326, 156 diction to vacate an order denying a motion Pac. 486; San Francisco-Oakland Terminal for a new trial, where the order was made Railways v. Superior Court, 172 Cal. 541, upon the submission of the motion, in the 157 Pac. 604. .

absence of counsel for the moving party, 4. Fallure to serve notice – Effect of. by a representative of the firm of opposing There is no authority to grant relief from counsel, who had no knowledge of the fact the consequences of a failure to serve a that it was agreed by his firm that the notice of intention to move for a new trial motion should be continued.-Robson v, Suwithin the time allowed by law.-Haviland perior Court, 171 Cal. 588, 154 Pac. 8.

§ 661.

1. Record on appeal.- Where a notice of intention to move for a new trial is not filed in time, and the motion is made on the minutes of the court and denied, a statement of the case attempted to be prepared under section 661 of the Code of Civil Procedure can not be used on an appeal taken from the judgment.-Neale v. Morrow, 174 Cal. 49, 161 Pac. 1165.

§ 663.

VACATION OF JUDGMENT. 1-3. Construction of section.

4. Motion for will not lie when.
5. Vacation as to one defendant.

1. Construction of section.-A motion to amend or to change any finding of fact is unauthorized and can not be granted. Neither this nor the following section authorize it. The language of these sections is entirely free from ambiguity and leaves no room for doubt as to what is authorized thereby. As applied to a judgment based upon findings of fact made by a trial court, the sections simply authorize a motion to vacate the judgment to make it and the conclusions of law consistent with and supported by the findings of fact, and do not authorize any change in any finding of fact. This section simply authorizes the substitution of the judgment that should have been given as a matter of law upon the findings of fact in a case where the judgment already given is an incorrect conclusion for such findings. The court can not change any finding of fact.-Hole v. Takekawa, 165 Cal. 372, 132 Pac. 445.

2. Where the findings of the court, fully supported by the evidence, sustain the judgment, the motion under this section is properly denied.-Sprague Canning Mach. Co. v. Western Ranching Corp., 29 Cal. App. 374, 155 Pac. 1017.

3. Whether a party by first taking an appeal from the judgment deprives himself of his recourse to the remedy herein is raised but not decided.-Sprague Canning Mach. Co. v. Western Ranching Corp.. 29 Cal. App. 374, 155 Pac. 1017.

4. Motion for will not lie when.-After a defendant has moved for a new trial because of the insufficiency of the evidence to sustain the verdict and had his motion overruled, he can not move to set aside the judgment on the same ground.—Treat v. Treat, 170 Cal. 337, 150 Pac. 57.

5. Vacation as to one defendant.If a judgment be given against several defendants who have been sued as joint tortfeasors, the judgment, if found to be erroneous as to any one of the defendants, may be vacated as to that one only, and be continued in full force and effect as to the remaining defendants who have not appealed.-Fearon v. Fodera, 169 Cal. 370, Ann. Can. 1916D 312, 148 Pac. 200.

8 0038.

1. Time of making motion.-A motion for a new trial is sufficiently made by the reading to the court of the notice of intention at the time fixed for the hearing of the motion.-Taylor y. Northern Elec. R. Co., 26 Cal. App. 765, 148 Pac. 543.

CHAPTER VIII.
MANNER OF GIVING AND ENTERING JUDGMENT.

8 671. Judgment-lien, when it begins and when it expires.
$ 671a. Filing judgments of United States courts (new).

8 664.

omitted, it may be subsequently entered and,

if justice requires, may be made to take 1. Entry of judgment.-Under our pro

effect nunc pro tunc as of the date when cedure the court pronounces its decision,

it was actually made.-Nolte v. Nolte, 29 which in fact is the oral judgment in the

Cal. App. 126, 154 Pac. 873. case. This judgment is to derive its support from written findings of fact and conclu

§ 667. sions of law signed by the court. The ministerial duty of the clerk is to enter a JUDGMENT IN CLAIM AND DELIVERY. judgment in conformity with the decision 1-3. Alternative form of judgment. of the court, evidenced by the signed ind

4. Computation of value. ings and conclusions. In the generality of

5. Excessive judgment—Full value is cases, to an intelligent clerk, the conclusions

when. of law will be sufficient guidance for the

1. Alternative form of judgment.-Where entry of a correct judgment. But it is eminently proper for the court to give to the

court to give to the it appears that the possession of the specific clerk for his direction the form of judgment personal property may be obtained or the which the decision or oral judgment calls property itself can be delivered to the party for.--Takekawa v. Hole, 170 Cal. 323, 149 claiming it, failure to make the judgment in Pac. 593.

the alternative form is not erroneous.2. -Entry nunc pro tunc. - Where a Beggs v. Smith, 26 Cal. App. 532, 147 Pac. judgment has been rendered and its entry 585.

2. While a judgment must ordinarily be in the alternative, yet a judgment that is not in the alternative is not void, and whether or not it is even erroneous must depend upon the facts of the particular case. -Keiser v. Levering, 29 Cal. App. 41, 154 Pac. 281.

3. A judgment which after ordering recovery by the plaintiff of the property described therein states “that the plaintiff is entitled to judgment for the sum of twelve thousand five hundred dollars in the event that said pictures are not returned to the plaintiff herein by said defendant," is substantially a judgment in the alternative -Orchardson v. Christie, 30 Cal. App. 8, 157 Pac. 547.

4. Computation of value.—The value of the property, where the judgment is in the alternative, is to be computed as of the time when demand for delivery was made and not as of the date of the original deposit in an action to recover the possession of certificates of stock and a bond deposited with stockbrokers as collateral security in the buying and selling of stocks on margin. -Hartnett v. Wilson, 31 Cal. App. 678, 161 Pac. 281. 5. Excessive judgment — Full value is

iudgment — Full value is when.—Where the plaintiff's right to have possession of the described property is only claimed for the purpose of satisfying his claims for an unpaid indebtedness, and where no special damages are alleged or proved, the value of the property to him can not exceed the amount of the indebted ness, and therefore a judgment for the full value in case delivery can not exceed such amount.--Keiser v. Levering, 29 Cal. App. 41, 154 Pac. 281.

whenever proceedings in probate are so akin to a civil action as to necessitate the "papers," which are declared by this section to constitute the judgment-roll, they may be held to constitute the judgment-roll' referred to in section 661 (repealed).Going v. Guy, 166 Cal. 279, 135 Pac. 1128.

3. The judgment-roll on an appeal from a decree of distribution is the petition for distribution, the opposition thereto, if any written opposition is filed, the counter-petitions filed, if any, or any other papers in the nature of pleadings filed at or before the hearing purporting to set forth the claims of the parties who appeared and claimed of the parties who distribution, with the answers thereto, also the findings of the court, if any, upon the issue formed, any orders or other papers of like character to those mentioned in section 670 of the Code of Civil Procedure, and the decree of distribution itself.-Estate of Broome, 169 Cal. 604. 147 Pac. 270.

4. It is axiomatic that papers not properly authenticated as having been used on a hearing resulting in a judgment or order or decree, can not be considered on appeal, decree. can not be saving those papers and those alone which may be considered as a part of the judgment-roll.-Estate of Broome, 169 Cal. 604, 147 Pac. 270.

5. The original answer is an essential part of the judgment-roll, and where the same is omitted from the judgment-roll presented on the appeal from the judgment and order denying new trial, and the answer which the court refused to allow substituted, the judgment-roll is fatally defective. --Lincoln County Bank v. Fetterman, 170 Cal. 357, 149 Pac. 811.

6. Upon a direct attack by appeal the judgment can not be held to be void merely because the affidavits upon which the order for publication of summons was granted do not appear in the judgment-roll.-William Wilson Co. v. Trainor, 27 Cal. App. 43, 148 Pac. 954.

7. A direction of the court that plaintiff's attorney prepare findings and judgment is no part of the judgment-roll, and hence an inspection of it would not disclose that such direction was given.--California Cent. Creamery Co. v. Crescent City L. W. & P. Co., 30 Cal. App. 619, 159 Pac. 209.

8. Exhibits and orders printed in the transcript but having no place therein as not being part of the judgment-roll are improperly in the record when there is no bill of exceptions, and the appellate court will not notice points attempted to be made as to them.—Brown v. Canty, 31 Cal. App. 183, 159 Pac. 1056.

§ 670. 1. Judgment-roll — What constitutes. The only papers which an appellate court can consider on an appeal from a decree of distribution, where the bill of exceptions or transcript has not been authenticated by the trial judge, are the papers which would be the equivalent of the judgment-roll in an ordinary civil action, that is, the petition for distribution, the opposition thereto, if any, the counter-petitions filed, or any other papers in the nature of pleadings purporting to set forth claims of parties who appeared and claimed distribution, with the answers thereto, also the findings of the court, if any, or any orders or other papers of like character mentioned in this section.-Estate of Gamble, 166 Cal. 253, 135 Pac. 970.

2. There is no "judgment-roll,” strictly speaking, in proceedings in probate, but

8 671. JUDGMENT-LIEN, WHEN IT BEGINS AND WHEN IT EXPIRES. Immediately after filing the judgment roll, the clerk must make the proper entries of the judgment under appropriate heads, in the docket kept by him, noting thereon the hour and minute of the day of such entry; and from the time the judgment is docketed it becomes a lien upon all the real property of the judgment debtor not exempt from execution in the county, owned by him at the time, or which he may afterwards acquire, until the lien ceases. The lien continues for five years unless the enforcement of the judgment be stayed on appeal by the execution of a sufficient undertaking as provided in this code, in which case the lien of the judgment and any lien by virtue of an attachment that has been issued and levied in the action ceases.

History: Enacted March 11, 1872, a re-enactment of $ 204 of Practice Act; amended March 24, 1874, Code Amdts. 1873-4, p. 320; March 9, 1895, Stats. and Amdts. 1895, p. 37; April 19, 1917, Stats. and Amdts. 1917, p. 141. In effect July 27, 1917.

8 671a. FILING JUDGMENTS OF UNITED STATES COURTS. Tran. scripts of judgments and copies of judgments rendered in the district or other courts of the United States within the State of California, when certified by the clerk of said courts under the seal thereof, may be filed and recorded in the office of the county clerk of any county in this state, and when so filed the clerk shall immediately enter the same in the judgment docket in the same manner as judgments rendered in the superior court are entered and such transcripts of judgments and copies of judgments, when so certified, may be filed for record in the office of any county recorder of this state and when so filed for record the county recorder shall record and index the same in the same manner as transcripts of judgments and copies of judgments of the courts of this state are recorded and indexed; and from such recording the judgment becomes a lien upon all the real property of the judgment debtor not exempt from execution in such county, owned by him at the time, or which he may afterward, and before the lien expires, acquire.

History: Enactment approved April 19, 1917, Stats. and Amdts. 1917, p. 142. In effect July 27, 1917.

$ 683.

§ 690. 1. Return of execution-Presumption as EXEMPTIONS FROM EXECUTION. to.--Where it can not be determined from 1. Construction - Subdivision 4 — Furniture affidavits in supplementary proceedings

of law once. when an execution was returned, if any2. —Subdivision 6-Auto truck. presumption is to be applied it will be 3. —Subdivision 10—Salary. presumed that the execution was returned

1. Construction — Subdivision 4- Furniby the officer within sixty days after receipt

ture of law office.- Where the trial court by him.-People ex rel. Dorris v. McKamy,

found on conflicting affidavits that the per28 Cal. App. 196, 151 Pac. 743.

sonal property seized was the professional

and necessary law office furniture and that 8 684.

the debtor was using it in the actual prac1. Enforcement of money judgment-An- tice of his profession the appellate court is nulment. - A sale made upon execution not authorized to review the evidence and issued upon a judgment is not subject to make a different finding. — Development annulment upon the ground that notice of Building Co. v. Woodruff, 31 Cal. App. 732, the making and filing of findings and of the 161 Pac. 754. rendition and entry of the judgment was 2. -Subdivision Auto truck.-An auto not served upon the adverse party prior to truck which the owner does not habitually the issuance of the execution and sale of use in earning his living is not exempt the property.-Foster v. Young, 172 Cal. 317, under subdivision 6 of section 690 of the 156 Pac. 476.

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