PESSARRA v. PESSARRA

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Docket Number

Docket No. 13494.

Attorney(S)

J.W. Ehrlich, Roy A. Sharff and Thaddeus Cline for Appellant. Samuel Vartan and Howard Magee for Respondent.

Judges

PETERS, P.J.

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Smart Summary

Factual and Procedural Background

The plaintiff (appellant) secured interlocutory and final decrees of divorce from the defendant (respondent). The defendant moved to vacate and set aside those decrees on the ground they had been secured by fraud. After a hearing, the court made a minute entry on February 24, 1947: "Motion to set aside Interlocutory and Final Decrees granted." The minutes did not direct that a written order be prepared, signed and filed. The minute entry was inadvertently entered with the wrong date but was corrected by a May 9, 1947 order to reflect the proper date of February 24.

At a March 18, 1947 hearing the court directed counsel for both parties to prepare proposed orders; both sides submitted proposed orders and the defendant's proposed formal order (which contained findings and additionally purported to nullify a property settlement agreement) was signed by the trial judge on April 4, 1947. The plaintiff filed a notice of appeal from the April 4, 1947 order on May 2, 1947. No appeal was taken from the February 24, 1947 minute order within 60 days after its entry.

Legal Issues Presented

Whether the minute order of February 24, 1947, finally disposed of the defendant's motion (thereby starting the 60-day appeal period) and was therefore appealable.
If the February 24 minute order did finally dispose of the motion, whether the trial court had power thereafter to modify or supersede that minute order by the formal order signed April 4, 1947.

Arguments of the Parties

Appellant's Arguments

The time to appeal did not commence to run from the February 24, 1947 minute entry but rather from the signing and filing of the formal written order on April 4, 1947.
The appellant relied on prior cases applying the older rule (pre-1943) and on the appellate decision in Trubowitch v. Riverbank Canning Co., arguing those authorities supported treating the formal signed order date as the start of the appeal period.
Counsel also referred to Estate of Lair in support of their position regarding the timing of the appeal period under the Rules on Appeal.

Respondent's Arguments

The defendant averred that at the March 18 hearing his counsel repeatedly called attention to the February 24 minute order and pointed out that the minute order was final and that findings were improper.
The defendant submitted a proposed form of written order (which the court later signed on April 4), and contended the minute entry of February 24 started the running of the time to appeal.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Estate of Yale, 208 Cal. 102 (280 P. 358)	Example of pre-1943 cases holding the time to appeal depended on what the judge intended when announcing his decision (subjective test).	Identified as part of the older, unsatisfactory rule the new Rule 2(b)(2) was designed to supersede.
Scrimsher v. Reliance Rock Co., 1 Cal.App.2d 382 (36 P.2d 688)	Another pre-1943 decision illustrating reliance on the judge's intent to determine appeal timing.	Used as an example of the old subjective test supplanted by Rule 2(b)(2).
McColgan v. Jones, Hubbard, etc., Inc., 11 Cal.2d 243 (78 P.2d 1010)	Pre-1943 authority reflecting the prior rule on when appeal time began.	Cited as part of the body of cases showing the confusion corrected by adoption of the new rule.
Smith v. Smith, 45 Cal.App.2d 212 (113 P.2d 892)	Pre-1943 case reflecting the prior approach to appeal timing.	Included among authorities demonstrating the inadequacy of the old subjective test.
Trubowitch v. Riverbank Canning Co., 71 A.C.A. 1051; review, 30 Cal.2d 335 (182 P.2d 182)	Addressed whether appeal time ran from minute entry or from signing and filing of formal judgment where findings were directed; Supreme Court held time ran from signing and filing where findings were required or directed.	The court distinguished Trubowitch: the Trubowitch Supreme Court decision applied where findings were required or ordered, but the instant case involved an order after motion for which no findings were required, so Trubowitch did not control.
Waymire v. California Trona Co., 176 Cal. 395 (168 P. 563)	Authority regarding situations requiring findings or judgments and the timing of appeal in such contexts.	Listed among authorities supporting the proposition that where findings are required the time to appeal runs from the filing of findings and judgment; contrasted with the instant case where no findings were required.
Wood v. Peterson Farms Co., 132 Cal.App. 233 (22 P.2d 565)	Related authority on the role of findings and the timing of appeals.	Used to support the distinction that orders after motion (no findings required) differ from judgments requiring findings.
Luitwieler v. Luitwieler, 57 Cal.App. 751 (207 P. 931)	Case cited on timing of appeals where findings or formal judgments may be required.	Cited as part of the group of authorities distinguishing cases requiring findings from orders after motion.
In re Principal, 101 Cal.App. 669 (282 P. 26)	Another authority on appeal timing where formal findings or judgments are involved.	Cited to show prior situations in which appeal timing followed filing of formal documents.
Bradley Co. v. Ridgeway, 14 Cal.App.2d 326 (58 P.2d 194)	Authority among cases discussing when appeal periods begin in the presence of required findings or formal entries.	Included with other cases to contrast with orders after motion that do not require findings.
Estate of Lair, 65 Cal.App.2d 245 (150 P.2d 560)	Holds that under Rule 2(b)(2) the date of entry in the minutes is the date of entry for appeal purposes where the minute entry did not direct that a written order be prepared, signed and filed.	The court cited Estate of Lair as being in exact accord with the court's interpretation of Rule 2(b)(2) and its application to the February 24 minute entry in this case.

Court's Reasoning and Analysis

The court framed the decisive question as whether the February 24, 1947 minute order finally disposed of the motion and thus commenced the 60-day appeal period. The court relied on Rule 2(b)(2) of the Rules on Appeal, which provides that when an order is entered in the minutes the date of entry for appeal purposes is the date of the minute entry unless the minute entry "expressly directs that a written order be prepared, signed and filed," in which case the date of filing of the signed order controls.

The court explained that Rule 2(b)(2) was adopted to eliminate prior confusion under the old statute (section 939 C.C.P.), which had required inquiry into the judge's subjective intent when he announced decisions; earlier cases therefore produced an uncertain rule. The new rule makes the minute entry presumptively the operative "date of entry" for appeal timing unless the minute entry itself directs a later formal filing.

Applying Rule 2(b)(2) to the present facts, the court found the February 24 minute order contained no direction that a written order be prepared, signed and filed; therefore the time to appeal began to run from that minute entry. The court rejected the appellant's reliance on the older cases and on the appellate Trubowitch decision because the new rule superseded the old subjective test and because the Supreme Court's Trubowitch decision was distinguishable (it applied where findings were ordered or statutorily required). The court noted that in the instant case no findings were required for an order after motion.

Because no appeal was taken within 60 days from the February 24 entry, that order became final; the court therefore concluded it had no power to modify the February 24 order by the later April 4 formal order. The April 4, 1947 order was held to be void and an appeal from it was abortive.

Holding and Implications

DISMISSED.

The court dismissed the appeal. The direct consequences specified by the court are: (1) the February 24, 1947 minute order finally disposed of the motion and, having not been appealed within the 60-day period, has become final; (2) the trial court lacked power to change that final minute order by the April 4, 1947 formal order, rendering the April 4 order void; and (3) the appeal from the April 4, 1947 order is abortive and therefore dismissed. The opinion applies Rule 2(b)(2) strictly and distinguishes cases requiring findings (where appeal timing may run from filing of findings and judgment).

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EMMA PESSARRA, Appellant, v. WILLIAM PESSARRA, Respondent.

PETERS, P.J.

This is a motion to dismiss the appeal of plaintiff from an order of the superior court vacating, on motion, interlocutory and final decrees of divorce on the ground that they had been secured by fraud.

The pertinent facts and dates are as follows:

The plaintiff secured an interlocutory and a final decree of divorce from defendant. Thereafter, defendant moved for an order vacating and setting aside these decrees.

February 24, 1947 — after a hearing the court made a minute order "Motion to set aside Interlocutory and Final Decrees granted." The minutes contained no direction that a written order should be prepared, signed and filed. This minute order was inadvertently entered in the minute book as of February 22, 1947, but by an order correcting the record dated May 9, 1947, the proper date was fixed for the entry of the order. Subsequently the defendant submitted a proposed form of written order and plaintiff objected. A hearing was had on March 18, 1947, and the court directed counsel for both parties to prepare proposed orders. Defendant avers that at this hearing his counsel repeatedly called attention to the minute order of February 24th, pointed out that such order was final, and that findings were improper. Both sides submitted proposed orders.

April 4, 1947 — the trial court signed the formal order proposed by defendant. This order contains findings, and not only purports to vacate the interlocutory and final decrees of divorce, but also purports to nullify a property settlement agreement made in contemplation of the divorce.

May 2, 1947 — plaintiff filed a notice of appeal from the order of April 4, 1947. No appeal was taken from the order of February 24, 1947, and the time to appeal therefrom expired prior to May 2, 1947.

Appeals from orders must be taken within 60 days from their entry. (Rule 2(a).) Obviously, if the order of February 24, 1947, disposed of the motion, the time for appeal having elapsed, such order has become final. It is clear that, if the order of February 24, 1947, finally disposed of the motion, the trial court had no power to modify or change its order on April 4, 1947, the purported formal order of that date is a nullity, and the appeal therefrom should be dismissed.

[1] The decisive question presented on this motion to dismiss is whether or not the order of February 24, 1947, finally disposed of the pending motion and was therefore appealable. If so, the appeal from the order of April 4, 1947, is abortive.

There would seem to be no reasonable doubt but that under the Rules on Appeal now in effect the entry of the order of February 24, 1947, started the time running for the appeal. Rule 2(b)(2) provides that for purposes of computing the 60-day limit within which to appeal "The date of entry of an order which is entered in the minutes shall be the date of its entry in the minutes, unless the entry in the minutes expressly directs that a written order be prepared, signed and filed, in which case the date of entry shall be the date of filing of the signed order."

This rule was adopted to clarify a most uncertain and confusing condition of the law existing prior to the adoption of this rule in July, 1943. Prior to that date, when orders were made by the trial court and entered in the minutes, and subsequently a formal written order was prepared, signed and filed by the judge, it was practically impossible for the lawyers to know when the time for appeal started to run. This was caused by the delusive simplicity of the language of section 939 of the Code of Civil Procedure which then controlled and which provided that the time to appeal began to run from the "entry of said judgment or order." Under this section the courts announced the rule that where the minute order was intended to be a mere memorandum from which a proper written order was to be drafted then the time for appeal started to run from the date of the filing of the last order. From a practical standpoint the cases, prior to 1943, held that the determinative factor was what the judge had in mind when he announced his first decision. ( Estate of Yale, 208 Cal. 102 [ 280 P. 358]; Scrimsher v. Reliance Rock Co., 1 Cal.App.2d 382 [ 36 P.2d 688]; McColgan v. Jones, Hubbard, etc., Inc., 11 Cal.2d 243 [ 78 P.2d 1010]; Smith v. Smith, 45 Cal.App.2d 212 [ 113 P.2d 892].) Such a subjective test, depending as it did upon the personal and frequently only partially disclosed intent of the trial judge, proved highly unsatisfactory. It was to rectify this condition that rule 2(b) (2) was adopted. In his article discussing the new rules, in 17 Southern California Law Review 79, the draftsman of the rules, after first discussing the complexities and ambiguities existing under the old statute, has this to say about the purposes of the new rule (p. 86): "The rule proceeds upon the theory that under the statutes and practice the normal method of evidencing and authenticating an order is by entry in the minutes. Presumptively, therefore, the minute entry is the `entry of the order' for the purpose of fixing time to appeal, and the parties may rely upon it unless the contrary is indicated on the face of the minute entry itself. It is immaterial that the court contemplates the filing of a formal order, and considers the oral pronouncement as preliminary and ineffective. The parties need not and cannot, speculate on such undisclosed intentions. For them the minute entry starts the time running unless the court as part of its oral pronouncement directs that a written order be prepared and filed, and this direction is made a part of the minute entry." (Italics added.)

That this is the purpose and effect of the new rule is made crystal clear by its language. It provides that the date of entry of an order entered in the minutes "shall be the date of its entry in the minutes, unless the entry in the minutes expressly directs that a written order be prepared, signed and filed." There is no room for interpretation. The language is clear and certain.

The plaintiff's argument that the time to appeal did not commence to run until the signing and filing of the formal order on April 4, 1947, is largely predicated on the reasoning of the cases above cited announcing the old rule. The rule of those cases has been changed by the adoption of the new rules. The plaintiff also places considerable reliance on the decision of the appellate court in Trubowitch v. Riverbank Canning Co., 71 A.C.A. 1051, and contends that the court in that case applied the rule of the old cases after the adoption of the new rules. Whatever the appellate court may have decided in that case (an examination of the opinion shows that it was based on old section 939 of the Code of Civil Procedure which had been repealed by implication by the new rules and has since been expressly repealed) is no longer the law because the Supreme Court granted a hearing, and has since decided the case. ( 30 Cal.2d 335 [ 182 P.2d 182].) That case involved an appeal from a judgment denying an application to enforce an agreement to arbitrate. On October 21, 1944, the court, after hearing, announced that the petition was denied and defendant's motion to dismiss granted. The record does not show that this order was entered in the minutes. On October 27, 1944, the court ordered the defendant to prepare findings. On January 5, 1945, the court adopted these findings. The Supreme Court properly held that the time to appeal ran from the date of the signing and filing of the formal judgment. Not only did the record not disclose when the order of October 21, 1944, was entered in the minutes (such date of entry being the date specified in rule 2(b)(2)), but on October 27th (presumably before the date of entry in the minutes) the court expressly directed the preparation of findings, thus bringing the case within the provisions of rule 2(b) (2). The Supreme Court also held that the type of judgment there involved, by express statutory provisions, required that findings be prepared, and that in such case there can be no final judgment until findings are signed and filed. That is sound law. It should be noted that, although the decision in the Trubowitch case is by a divided court, the three dissenting justices did not disagree with this holding, contained in the majority opinion, and do not mention it in their dissent. The case stands for the proposition that rule 2(b) (2) does not require the appeal to be taken from the minute order where the law requires such order to be followed by the filing of formal findings and a judgment. In such case, even if the order is silent as to an express direction to prepare findings and judgment, the time to appeal runs from the filing of such findings and judgment. In such case rule 2(b) (1) provides that the time starts to run from the entry of the "judgment." The rule of this case can have no application here because in the instant case, involving as it does an order after motion, no findings were required. ( Waymire v. California Trona Co., 176 Cal. 395 [ 168 P. 563]; Wood v. Peterson Farms Co., 132 Cal.App. 233 [ 22 P.2d 565]; Luitwieler v. Luitwieler, 57 Cal.App. 751 [ 207 P. 931]; In re Principal, 101 Cal.App. 669 [ 282 P. 26]; Bradley Co. v. Ridgeway, 14 Cal.App.2d 326 [ 58 P.2d 194]; 24 Cal.Jur. pp. 950, 952, § 191.)

Counsel also refer to the case of Estate of Lair, 65 Cal.App.2d 245 [ 150 P.2d 560]. There the appeal was from a decree settling the final account of a testamentary trustee. The decree was signed by the judge and filed June 3, 1943. It was entered June 8, 1943. Notice of appeal was filed August 5, 1943. The court held that the time for appeal, under rule 2(b) (2) started to run from the date the signed decree was entered in the minutes — June 8, 1943. It was further pointed out that the signed decree of June 3, 1943, expressly directed that a minute entry be subsequently made. Under such circumstances the court held (p. 248): "Under the Rules on Appeal, the decree herein having been entered in the minutes and said entry not having directed that a written order be prepared, signed and filed, the date of entry of the decree was the date the decree was entered in the minutes, June 8, 1943, and the date of the filing of the signed decree herein, June 3, 1943, did not constitute the date of entry of the decree." That is in exact accord with the views herein expressed.

From what has been said it is quite clear that for purposes of appeal the order of February 24, 1947, finally disposed of the case; that the court had no power to change or modify that order in the manner attempted by the order of April 4, 1947; that the order of April 4th was totally void and the appeal therefrom abortive; that no appeal was taken within 60 days from the entry of the order of February 24th, and such order has become final. For these reasons it is ordered that the appeal here involved is dismissed.

Bray, J., and Ogden, J. pro tem., concurred.