Opinion
Page __
Rehearing Granted Feb. 14, 1962.
For Opinion on Rehearing see 20 Cal.Rptr. 321, 369 P.2d 937.
Schauer and McComb, JJ., dissented.
No appearance for respondent.
Thomas, James & Pendleton and Douglas H. Pendleton, San Jose, for petitioners.
Malcolm K. Campbell, San Jose, for real party in interest.
PETERS, Justice.
Certiorari is sought to review a decision of the appellate department of the superior court. The decision in question vacated an order of the municipal court granting petitioner a new trial. It is urged that the municipal court, in granting the new trial, followed the rule announced in Kroiss v. Butler, 129 Cal.App.2d 550, 277 P.2d 873, the only applicable appellate decision on the problem involved, and that the appellate department of the superior court refused to follow the rule of that case, expressly holding that it had been wrongly decided. It is contended that an inferior court that refuses to follow a rule established by a court of superior jurisdiction exceeds its 'jurisdiction,' as that term is used in connection with the writ of certiorari. We agree with that contention.
Certiorari, like prohibition, is, of course, a 'jurisdictional' writ. While it cannot be used to attack an error of a lower tribunal committed in the exercise of its jurisdiction, it is available when that tribunal has acted in excess of its 'jurisdiction.' (Simmons v. Superior Court, 52 Cal.2d 373, 341 P.2d 13; Portnoy v. Superior [368 P.2d 98] [18 Cal.Rptr. 498] Court, 20 Cal.2d 375, 125 P.2d 487.) The meaning of 'jurisdiction' for the purposes of certiorari and prohibition is different and broader than the meaning of the same term when used in connection with 'jurisdiction' over the person and subject matter. (Abelleira v. District Court of Appeal, 17 Cal.2d 280, 288, 109 P.2d 942, 132 A.L.R. 715; Goldberg, The Extraordinary Writs and the Review of Inferior Court Judgments (1948) 36 Cal.L.Rev. 558, 576.) In commenting on the meaning of 'jurisdiction' in a prohibition case, it was said in Abelleira that, 'Speaking generally, any acts which exceed the defined power of a court in any instance, whether that power be defined by constitutional provision, express statutory declaration, or rules developed by the courts and followed under the doctrine of stare decisis, are in excess of jurisdiction, in so far as that term is used to indicate that those acts may be restrained by prohibition or annulled on certiorari.' (Abelleira v. District Court of Appeal, supra, 17 Cal.2d 280, 291, 109 P.2d 942, 948.)
In this sense, the superior court, appellate department, exceeded its jurisdiction. In analyzing the problem presented to it the superior court expressly refused to follow a District Court of Appeal opinion directly in point. In discussing Code of Civil Procedure, section 659, with which the merits of this case are concerned, the superior court stated that 'there is no question but that the decision of the District Court of Appeals in Kruiss (sic) v. Butler, 129 C.A.2d 550 (277 P.2d 873), fully supports * * * (defendant). With due respect to the District Court of Appeals which decided the Kruiss (sic) case, it is the opinion of this Court that the decision therein is erroneous.' Thus the superior court expressly refused to follow a decision of a court of higher jurisdiction. In doing so it exceeded its jurisdiction. Under the doctrine of Stare decisis inferior tribunals are bound by decisions of higher courts. Thus, the decisions of this court are binding upon all state courts in California. Decisions of any of the District Courts of Appeal are binding on justice and municipal courts and on all superior courts in the state, and this is so whether the superior court is sitting as a trial or appellate court. Inferior tribunals must accept the law as they find it. It is not their function to try to overrule decisions of a higher court. (People v. McGuire, 45 Cal. 56, 57-58; Latham v. Santa Clara County Hospital, 104 Cal.App.2d 336, 340, 231 P.2d 513; Globe Indemnity Co. v. Larkin, 62 Cal.App.2d 891, 894, 145 P.2d 633.)
This rule requiring a court of inferior jurisdiction to follow the decisions of a court of higher jurisdiction has particular application to the appellate departments of the superior court. Until very recently, the decisions of those courts were not subject to appellate review except by the use of original writs in exceptional cases. Even under the recent constitutional amendment (Cal.Const. art. VI, s 4e), which is not here applicable, the right of review is strictly limited (Code Civ.Proc. s 988t; Pen.Code, s 1471). It would create chaos in our legal system if these courts were not bound by higher court decisions.
The Abelleira case, supra, held that the rule of stare decisis was a rule of jurisdiction for the purposes of the writ of prohibition (17 Cal.2d at p. 293, 109 P.2d at p. 949). For the reasons stated in that case, that rule is also one of jurisdiction for the purposes of the writ of certiorari. Therefore, the appellate department of the superior court exceeded its jurisdiction, in this sense, when it refused to follow Kroiss v. Butler, supra, 129 Cal.App.2d 550, 277 P.2d 873.
The merits of this case relate to the time limitations under Code of Civil Procedure, section 659, as it read before the 1961 amendments, for filing the notice of intention to move for a new trial where a motion for judgment notwithstanding the verdict is made before entry of the judgment, [368 P.2d 99] [18 Cal.Rptr. 499] reserving the right to later move for a new trial.
The chronology of the case is as follows: December 20, 1960, verdict for plaintiff was returned by the jury in the municipal court action of Hesenflow v. Auto Equity Sales, Inc.; December 21, 1960, defendant, petitioner herein, moved for a judgment notwithstanding the verdict, reserving the right to later move for for a new trial; January 23, 1961, defendant filed a notice of intention to move for a new trial; February 17, 1961, judgment for plaintiff was entered. March 2, 1961, defendant's motion for a new trial was granted.
Petitioner contends that it properly moved for a new trial under the provisions of Code of Civil Procedure, section 659. That section, before the 1961 amendments, read:
'The party intending to move for a new trial must file with the clerk and serve upon the adverse party a notice of his intention to move for a new trial * * * either
'1. Before the entry of judgment and, where a motion for judgment notwithstanding the verdict is pending, then within five days after the making of said motion; or
'2. Within 30 days after the entry of the judgment or 10 days after service upon him by any party of written notice of the entry of judgment, whichever is earlier. * * *'
Petitioner contends that under this section, it, at its option, could file its notice of intention to move for a new trial within the time provided for in either subparagraph 1 or subparagraph 2. The real party interest maintains that if a party moves for a judgment notwithstanding the verdict before judgment is entered, then his notice of intention to move for a new trial can be filed only within five days after the motion for judgment notwithstanding the verdict is made. That is, he claims that such party does not have the option of filing said notice either within that five-day period, or any time within the period provided for in subparagraph 2 of section 659.
Prior to 1951 section 659 read, 'The party intending to move for a new trial must, either before the entry of judgment or within ten (10) days after receiving written notice of the entry of the judgment, file * * * and serve * * * a notice of his intention to move for a new trial * * *.' Under this section as it then read a motion for a new trial could be made any time after the denial of a motion for judgment notwithstanding the verdict, if within the time limits of section 659.
To speed up trial procedure, and in the interests of efficiency, the Legislature in 1951 substantially amended sections 629 and 659 of the Code of Civil Procedure. The amendment to section 629 provided that the right to move for a new trial is waived unless reserved when a motion for judgment notwithstanding the verdict is made. At the same time section 659 was amended to read, 'The party intending to move for a new trial must, either (1) before the entry of judgment and, where a motion for judgment notwithstanding the verdict is pending, then within five (5) days after the making of said motion, or (2) within ten (10) days after receiving written notice of the entry of the judgment * * * (file his notice of intention to move for a new trial).' (Emphasis added to the 1951 amendments.)
The apparent purpose of the Legislature in making these amendments was to speed up trial practice and, at both trial and appellate levels, to obviate the piecemeal consideration of motions for new trial and for judgments notwithstanding the verdict. (Macdonald, The New Procedure Affecting Motions for New Trial and Judgment Notwithstanding the Verdict (1951) 26 State Bar J. 299, 302.)
The only case interpreting section 659 in this respect, as that section read after the 1951 amendments, is Kroiss v. Butler, [368 P.2d 100] [18 Cal.Rptr. 500] supra, 129 Cal.App.2d 550, 277 P.2d 873, upon which petitioner heavily relies. That case held that when the alternative motion was made before entry of judgment the notice of intention to move for a new trial could be made either within five days therefrom, or within the period specified in subparagraph 2 of section 659.
In view of the 1951 amendments to the code and the legislative purpose behind these amendments, it can be and is argued that the Kroiss case failed to give effect to the purpose of these amendments and was therefore incorrectly decided. However we do not find it necessary to now overrule that decision. The petitioner and the municipal court relied, as indeed they had to, upon the Kroiss case, the only appellate court decision on the point involved. It would be unfair to overrule that decision and deprive petitioner of its new trial. We are dealing with a rule of procedure that was determined by the Kroiss case. If we were to overrule that case, fairness would require that we make the effect of such overruling prospective and not retrospective. That has been the practice of this court in such matters. (See Phelan v. Superior Court, 35 Cal.2d 363, 371-372, 217 P.2d 951; Parrott v. Furesz, 153 Cal.App.2d 26, 30-32, 314 P.2d 47.) But after the 1961 amendments to these sections this problem cannot arise again. Under the latest changes to sections 629 and 659 the motion for judgment notwithstanding the verdict can be made any time within the period during which a motion for new trial can be made. And the making of a motion for judgment notwithstanding the verdict does not affect the permissible time during which the motion for new trial must be noticed. Therefore the problem of this and the Kroiss case can no longer arise.
Section 659 now reads in part:
The judgment of the superior court, appellate department, being in excess of its jurisdiction, is annulled.
GIBSON, C. J., and TRAYNOR, WHITE and DOOLING, JJ., concur.
SCHAUER and McCOMB, JJ., dissent.
'The party intending to move for a new trial must file with the clerk and serve upon the adverse party a notice of his intention to move for a new trial * * * either
'1. Before the entry of judgment; or
'2. Within 30 days after the entry of the judgment or 10 days after service upon him by any party of written notice of the entry of judgment, whichever is earlier.'
Section 629 now reads in part:
'A motion for judgment notwithstanding the verdict shall be made within the period specified by Section 659 of this code in respect of the filing and serving of notice of intention to move for a new trial. The making of a motion for judgment notwithstanding the verdict shall not extend the time within which a party may file and serve notice of intention to move for a new trial. The court shall not rule upon the motion for judgment notwithstanding the verdict until the expiration of the time within which a motion for a new trial must be served and filed, and if a motion for a new trial has been filed within the court by the aggrieved party, the court shall rule upon both motions at the same time. * * *'