Opinion
Page __
__ Cal.2d __ 275 P.2d 5 Eleanor BADELLA, Philip Badella, Jr., a minor and Robert Badella, a minor, by their Guardian ad litem, Eleanor Badella, Plaintiffs and Respondents, v. Richard MILLER and Mrs. Richard Miller, doing business as Miller's Riding Stables, Mac Napoll, Pat Napoll, George Guerne, Jackie Guerne, First Doe, Second Doe, Third Doe, Fourth Doe and Fifth Doe, Defendants and Appellants. S. F. 19042. Supreme Court of California Oct. 22, 1954Rehearing Granted Nov. 17, 1954.
Prior opinion, 266 P.2d 208.
[275 P.2d 6] Cooley, Crowley & Gaither and Frank D. Tatum, Jr., San Francisco, for appellants.
Fitz-Gerald Ames, Sr., and Allen Spivock, San Francisco, for respondents.
CARTER, Justice.
By unverified complaint plaintiffs commenced an action in San Francisco for the alleged wrongful death of Philip Badella, the husband and father of plaintiffs. Named as defendants are Mr. and Mrs. Miller, Earl George and four other defendants. It is alleged the Millers were the owners and operators of riding stables in Sonoma County and were owners or part owners or in charge of a horse named 'Saltie'; that the Millers leased a portion of the stables to defendant George including a stall in which Saltie was stabled, and he, the Millers and the other four defendants jointly possessed and controlled the horse; that George resides in San Francisco; that on August 19, 1950, the horse was negligently left unattended at the stables and by reason of his known dangerous character, attacked Philip Badella, deceased, causing injuries to him which resulted in his death on February 1, 1951.
Defendant George answered raising general issues and pleaded contributory negligence; the other defendants demurred. All the defendants, except George, noticed a motion for a change of venue to Sonoma County, on the grounds that they were residents of that county and George was named defendant solely for the purpose of having the action tried in San Francisco under section 395 of the Code of Civil Procedure. Under that section the action is properly triable in San Francisco if any of the defendants reside there unless such resident defendant was made a party solely for the purpose of having the action tried there.
'If the action be for injury to person, * * * or for death from wrongful act, or negligence, either the county where the injury occurs, or where the injury causing death occurs, or the county in which the defendants, or some of them, reside at the commencement of the action, shall be a proper county for the trial of the action. * * * If any person is improperly joined as a defendant or has been made a defendant solely for the purpose of having the action tried in the county, * * * where he resides, his residence must not be considered in determining the proper place for the trial of the action.' Code Civ.Proc. s 395.
It appears without question that all the defendants, except George, are residents of Sonoma County and that George resides in San Francisco. The injury occurred in Sonoma County.
The affidavits supporting the motion aver that George was joined solely to keep the case in San Francisco, asserting that before his death Badella commenced an action for his injuries in San Francisco and it was moved to Sonoma, no resident (George) being named defendant. After his death an [275 P.2d 7] action for wrongful death was commenced in San Francisco naming some Does as defendants residing in San Francisco. A motion was made to transfer that action and while it was pending plaintiffs dismissed it. Plaintiffs' counsel expressed 'strong desire' to keep the trial in San Francisco and said he would file a new action so drawn that it could be kept there. The affidavits of defendants, other than George, stated their Sonoma County residence and that no relation of master and servant or principal and agent existed between the other defendants and them and that George had no control, possession of or connection with the horse. George stated in his affidavit that neither he nor any of his employees had any connection with the horse.
The motion was noticed for September 5, 1951, and due service was made on plaintiffs' attorneys. On that date the motion came on for hearing. Plaintiffs did not appear at the hearing nor file affidavits. The judge, on that date, made and signed a formal written order granting the motion and ordering the action transferred to Sonoma County on the ground that under defendants' affidavits George was named defendant solely for the purpose of having the action tried in San Francisco. On the same date, according to the clerk's minute book, a 'Minute Order' was made as follows: 'In this action, counsel for defendants present, the court ordered motion for change or venue granted. ' $tIn this action, the court on its own motion, ordered order heretofore made granting motion for change of venue, be set aside.' In explanation of the last sentence of the minute order, the following appears: The judge stated in a letter dated September 5, 1951, addressed to defendants' attorneys (copies sent to plaintiffs' counsel) which may be considered a memorandum opinion, that after defendants' counsel had left the court after the hearing on the motion and apparently after the filing of the formal order, plaintiffs' counsel appeared about two hours late and explained his failure to appear before, stating he had previously advised the judge's secretary that he would be late. The secretary so informed a deputy clerk but the latter did not advise the judge. He was satisfied that counsel's excuse was valid and while he might move to set aside the 'order of the court' (presumably the formal order), it would not be necessary and the court has on its own motion set aside the order and the matter would be heard on September 12, 1951. No notice of the proposed vacation of the formal order was given to defendants.
Defendants claim that the opinion has no place in the record. It is proper for it to be in the record although it cannot control over the court's orders or judgments. Rules on Appeal, Rules 5(a) and (b); 4 Cal.jur.2d, Appeal & Error, s 307.
Thereafter the motion for change of venue was again heard. Plaintiffs submitted affidavits and the court denied the motion by minute order on October 25, 1951. , $tDefendants appeal from the order of denial. They contend that the formal order transferring the case to Sonoma County was not properly set aside, and that in any event they were entitled on the merits to a change of venue because George was made a defendant solely to have the trial in San Francisco.
In regard to the propriety of the order vacating the formal order of September 5, it should be preliminarily observed that plaintiffs assert that the formal order was not entered by the clerk until at the same time the order vacating it was made (the minute order heretofore quoted); that a judgment is not effective until entered and the order was nullified by the same minute order by which it was made and entered. The formal order was signed and filed by the court and it appears from the letter (opinion) by the judge that he had considered it made when he ordered it vacated on the basis of the excuse for the failure of plaintiffs' counsel to appear at the hearing. In Maxwell v. Perkins, 116 Cal.App.2d 752, at page 755, 255 P.2d 10, at page 13, it was pointed out that an order granting a motion for change of venue need not have findings and that a signed and filed order by the judge need not be entered to be effective, stating: 'Section 1003 of [275 P.2d 8] the Code of Civil Procedure states that 'every direction of a court * * * made or entered in writing, and not included in a judgment, is denominated an order.' As was stated in Von Schmidt v. Widber, 99 Cal. 511, 514, 34 P. 109, 110: 'nor is there any provision of law which requires all the orders of a court to be entered at length in its minutes, in order that they may be effective; and by section 1003 of the Code Civil Proc., every direction of a court or judge is an order, whether it be merely made in writing or entered in the minutes. If it is not entered it should, however, be filed, in order that it may form a part of the records in the case.' Unless otherwise required by statute, an order becomes legally effective at the time it is signed and filed, regardless of whether it is entered in the minutes by the clerk. * * *
'Nothing further was needed to give vitality to the order. * * * The entry of such order in the clerk's minutes served merely to fix the running of time for appeal. * * * The judge's assertion that it was his intention that his 'effective ruling' be set forth in a minute order to be prepared and entered in the minutes by the clerk cannot detract from the fact that the ruling which he had already signed and filed was itself his final judicial determination on the merits of the motion for change of venue.' The formal order was, therefore, an effective final order, granting the motion to change venue and transferring the action. The order vacating it was a separate and subsequent order.
It has been held that when a court makes an unconditional order transferring a case pursuant to motion to change venue, it loses jurisdiction to vacate the order as jurisdiction has passed to the court to which the action is ordered transferred. Chase v. Superior Court, 154 Cal. 789, 99 P. 355, where the trial court vacated the order for failure of defendant to pay fees in the county to which the action was transferred as then required by the statute; now plaintiff must pay them; Code Civ.Proc. s 399; Refrigeration Discount Corp. v. Superior Court, 91 Cal.App.2d 295, 204 P.2d 932. And it has been stated generally that once the order for transfer has been made, the court from which it is transferred has no further jurisdiction to make any further order or take any further steps in the action. Searcy v. Superior Court, 47 Cal.App. 124, 190 P. 202, trial court awarded alimony after order of transfer; Hatch v. Galvin, 50 Cal. 441, court proceeded to trial; Searcy v. Kay, 46 Cal.App. 792, 190 P. 49; Foote v. Superior Court, 122 Cal.App. 519, 10 P.2d 539; see Rilcoff v. Superior Court, 50 Cal.App.2d 503, 123 P.2d 540. Those cases proceed on the theory that an order transferring the action is final as it is appealable, Code Civ.Proc. s 963(2), and the provision that the court to which an action is transferred shall exercise jurisdiction over the action the same as if it had been commenced there. Code Civ.Proc. s 399. On the other hand, Baker v. Fireman's Fund Ins. Co., 73 Cal. 182, 14 P. 686, holds that after the court has made an order transferring an action it may vacate it on the ground it was inadvertently made, relying upon Wiggin v. Superior Court, 68 Cal. 398, 9 P. 646, which held that a court had inherent power to vacate an order (it was not a venue order) inadvertently made. The court in Christin v. Superior Court, 9 Cal.2d 526, 531, 71 P.2d 205, 112 A.L.R. 1153, in passing, states that a motion could be made in the transferring court to vacate the order of transfer. It does not appear that the finality and appealability of an order changing venue, nor the provision that the court to which the transfer is made should thereafter exercise jurisdiction, Code Civ.Proc. s 399, should preclude the court making the order from considering a motion to vacate such order made according to some recognized procedure and on some recognized ground. That court ordinarily is in a better position to pass upon such a motion and should have an opportunity to correct its errors. We believe, therefore, that Baker v. Fireman's Fund Ins. Co., supra, 73 Cal. 182, 14 P. 686, is controlling here. The other cases, except possibly Refrigeration Discount Corp. v. Superior Court, supra, 91 Cal.App.2d 295, 204 P.2d 932, do not involve that precise question; [275 P.2d 9] the Refrigeration case insofar as it does is disapproved.
Assuming, however, that the San Francisco court was exercising an assumed inherent power in vacating its order granting a change of venue, see Key System Transit Lines v. Superior Court, 36 Cal.2d 184, 222 P.2d 867, such as inadvertence in granting the motion, or under section 473 of the Code of Civil Procedure, the order of vacation is nevertheless vulnerable to attack for failure of the plaintiffs to give notice of motion and an opportunity to defendants to be heard before the order was made. On either theory a notice and hearing are necessary as the order was a judicial determination. In re Estate of Hultin, 29 Cal.2d 825, 178 P.2d 756; Harth v. TenEyck, 16 Cal.2d 829, 108 P.2d 675; 14 Cal.Jur. 1007-8, 1047-49. Defendants may have been able to show that plaintiffs' failure to appear was not excusable. On such showing it should be held that the formal order granting a change of venue was erroneously set aside. Thus the later order denying the motion for a change of venue must be reversed as it had the effect of setting aside the court's formal order granting a change of venue without following a recognized method of procedure. When the hearing on the motion for change of venue was finally had, with both parties present, it does not appear that any consideration was given to the question of whether there were grounds for setting aside the formal order granting a change of venue.
The court may relieve a party from an order taken against him through his mistake, inadvertence, surprise or excusable neglect under that section, and from the court's opinion, that was apparently the case here. In effect the order of transfer was made on default inasmuch as plaintiffs failed to appear when it was heard and resist it by affidavit.
For the foregoing reasons we do not reach the question of whether, on the merits, the motion for change of venue should be granted. As pointed out above it appears that the order vacating the formal order granting defendants' motion for a change of venue is ineffectual. The formal order granting the motion for a change of venue stands subject to such further proceedings as may be proper. The order denying defendants' motion for a change of venue is reversed.
GIBSON, C. J., and SHENK, TRAYNOR, SCHAUER and SPENCE, JJ., concur.
EDMONDS, J., concurs in the judgment.