Opinion
Docket Nos. 9739, 9614.
November 3, 1959.
APPEALS from judgments of the Superior Court of Mendocino County. Lilburn Gibson and Hale McCowen, Judges. One judgment affirmed; appeal from other judgment dismissed.
Kasch Cook for Appellants in Civ. No. 9739 and for Respondents in Civ. No. 9614.
Winslow Turner for Appellant in Civ. No. 9614, and for Respondent in Civ. No. 9739.
We have here two appeals from judgments entered in two proceedings, each of which had for its object the establishment of The Paul Bunyan News as a newspaper of general circulation. We shall consider first the appeal from a judgment rendered in the proceeding first begun (herein 3 Civil No. 9739), which judgment declared that The Paul Bunyan News was a newspaper of general circulation in the county of Mendocino.
On November 8, 1955, William F. Grader, as editor of The Paul Bunyan News, filed a petition asking that it be judicially established that the paper was one of general circulation. The petition was opposed and after a hearing, the court signed and filed a document entitled "Decision and Judgment" wherein after discussing various legal issues involved the court stated that the petition "must be, and is, denied." On December 12, 1955, an order was entered in the court minutes reading, "It is ordered that the petition be and is denied." The cause rested there until November 7, 1958, when Grader served notice of intention to move for new trial. The motion was timely since no notice had ever been given of the entry of judgment. The trial court, although denying a new trial, set aside the judgment, reopened the cause, held a further hearing, and entered a different judgment under the authority conferred by section 662 of the Code of Civil Procedure. The judgment declared The Paul Bunyan News to be a newspaper of general circulation in the county of Mendocino.
It appears that the newspaper is printed in Ukiah, and is issued in Fort Bragg. Both Ukiah and Fort Bragg are incorporated cities in Mendocino County, distant about 50 miles from each other. It is the contention of appellants, who opposed the petition of Grader, that under the provisions of sections 6000 to 6005 inclusive of the Government Code, the newspaper could not be judicially established as one of general circulation so long as the printing is done in one city and the publishing in another.
[1] It was held in In re Lynwood Herald American, 152 Cal.App.2d 901 [ 313 P.2d 584] (hearing denied by Supreme Court) as follows (syllabus):
"Enactment of Gov. Code, § 6004.5, concerning qualifications of a newspaper of general circulation, did not change the rule that the fact that a newspaper printed in a certain city in a certain county does not qualify for publication of legal notices required to be published within certain other cities in the county does not prevent it from qualifying as a newspaper of general circulation for publication of legal notices required to be published in such county, where the paper is both printed and, in the sense of printed and issued, `published' in such county."
Since the judgment appealed from did not purport to do more than to declare the newspaper one of general circulation in the county of Mendocino, the judgment must be affirmed on the authority of the cited case.
Turning now to the appeal taken from the judgment in the second proceeding, it appears that the petition therein praying for establishment of The Paul Bunyan News as a newspaper of general circulation was filed May 13, 1958, and the judgment appealed from which denied the petition was entered September 8th following, so this proceeding was completed in the trial court before new trial proceedings were brought in the older proceeding.
The ground upon which the trial court denied the second petition was that the judgment in the first proceeding was final and that, therefore, the matter was res judicata as to the second proceeding.
The pendency of the second proceeding, an appeal from the judgment therein having been taken, presented no obstacle to the action taken by the court in the first, and whether we affirm or reverse the judgment rendered in the second proceeding on appeal therefrom the force and effect of the judgment in the first will be the same, that is, will establish The Paul Bunyan News as a newspaper of general circulation in Mendocino County from the date of its rendition onward. The issues presented by the appeal now being considered have therefore become moot and the appeal should be dismissed.
The appeal, herein numbered 3 Civil Number 9614, from the judgment denying the petition to establish The Paul Bunyan News as a newspaper of general circulation is dismissed. The judgment, herein numbered 3 Civil Number 9739, declaring said newspaper to be a newspaper of general circulation in Mendocino County is affirmed. The Paul Bunyan News shall recover costs in both appeals.
Schottky, J., and Warne, J. pro tem., concurred.
Assigned by Chairman of Judicial Council.