Opinion
No. 16914
12-18-1956
Florence E. CARNEY, administratrix of the Estate of Rose Simmonds, deceased, substituted for Rose Simmonds, Plaintiff, Respondent and Appellant, v. Anna SIMMONDS and Berdella Marie McMinn, individually and as administratrix of the Estate of Thomas J. Simmonds, deceased, et al., Defendants, Appellants and Respondents.*
Jacobsen & Tobin, San Francisco, for defendants appellants. Eugene S. Clifford, Heller, Ehrman, White & McAuliffe, San Francisco, for plaintiff appellant.
Florence E. CARNEY, administratrix of the Estate of Rose Simmonds, deceased, substituted for Rose Simmonds, Plaintiff, Respondent and Appellant,
v.
Anna SIMMONDS and Berdella Marie McMinn, individually and as administratrix of the Estate of Thomas J. Simmonds, deceased, et al., Defendants, Appellants and Respondents.*
Dec. 18, 1956.
Rehearing Denied Jan. 17, 1957.
Hearing Granted Feb. 13, 1957.
Jacobsen & Tobin, San Francisco, for defendants appellants.
Eugene S. Clifford, Heller, Ehrman, White & McAuliffe, San Francisco, for plaintiff appellant.
BRAY, Justice.
Defendants appeal from an 'Order Granting New Trial and For Filing Amended Complaint.' Plaintiff Rose Simmonds cross-appeals from the judgment on the pleadings entered against her. Questions Presented.
1. Is a motion for new trial proper to review a judgment on the pleadings?
2. Did the court err in granting a new trial on the ground (a) either that the judgment was against law or of error in law occurring at the trial; (b) on the ground that the notice of motion was insufficient and not accompanied by affidavits? Record.
Plaintiff filed a complaint for partition of real property. Defendants' demurrer thereto was overruled. Plaintiff, however, filed an amended complaint. Its allegations follow:
Plaintiff is the mother of Thomas J. Simmonds and is the owner as tenant in common of an undivided one-half interest in the described real property. At the time of Thomas' death, the property was his separate property, his wife Kathleen having predeceased him, without issue. Thomas then remarried. He died intestate, leaving as surviving heirs, plaintiff, and his widow, Anna Simmonds. Defendant McMinn was appointed administratrix of Thomas' estate. On October 2, 1951, plaintiff filed and served on the attorneys for the administratrix a request for special notice. On October 15th defendant McMinn fraudulently obtained a decree assigning the whole of the estate to the surviving widow, Anna. After alleging that defendants claim an adverse interest in the property, plaintiff prays that the decree of distribution be vacated and that plaintiff be adjudged to be the owner of said property; that the rights of the defendants be determined and that the property be partitioned if defendants have any interest therein. Defendants did not demur but answered. At the time set for trial both parties answered 'Ready.' Defendants moved for judgment on the pleadings. The motion was granted without leave to amend, although plaintiff requested permission to amend as soon as the court announced its ruling. The court first made an order granting the motion for judgment on the pleadings 'without leave to amend' and then a judgment on such order. Plaintiff then filed 'Notice of Intention to Move for New Trial and for Order Vacating and Setting Aside Judgment on the Pleadings and for Order Allowing the Filing of an Amended Complaint or, in Lieu Thereof, for an Order Granting Dismissal of the Action Without Prejudice to Plaintiff,' accompanying it with a proposed 'Second Amended Complaint to Impose a Trust, for an Accounting, for Conspiracy and for Equitable, Injunctive and Other Relief.' Upon the hearing thereof, the court vacated the judgment, granted a new trial and leave to plaintiff to file the proposed amended complaint. 1. Power To Grant New Trial.
Defendants contend that on the theory that there has been no trial, a trial court has no power to grant a new trial on a judgment on the pleadings. Section 657, subdivision 7, Code of Civil Procedure, provides that a new trial may be granted for 'Error in law, occurring at the trial * * *.' (Emphasis added.) In our case, the case was set for trial. As soon as the case was called defendant moved for judgment on the pleadings. Prior to the decision in Bice v. Stevens, 129 Cal.App.2d 342, 277 P.2d 106, there seemed to be some confusion in this state as to whether a new trial could be granted on a judgment on the pleadings, where no evidence had been introduced and there were no other rulings on motions. However, that confusion was ended by the Bice case. There the court in a well reasoned opinion reviewed the various cases in California on the subject, concluded that a 'trial' is the examination of the facts or law put in issue in a cause for the purpose of determining the rights of the parties, and held that a motion for judgment on the pleadings and determination thereof constituted a trial within the meaning of section 657, subdivision 7, giving the trial court jurisdiction to grant a new trial for error in law in granting such motion.
Defendants rely on a statement in Hotel Park Central v. Security-First Bank, supra, 15 Cal.App.2d 293, 59 P.2d 606, appearing in a quotation therefrom in the Bice case, to the effect that a motion for judgment on the pleadings not accompanied or associated with other rulings made at the time of the trial falls within the rule denying the power of the court to grant a new trial. They couple this quotation with the fact that in the Bice case the motion for judgment on the pleadings did not come until after counsel for the plaintiff had made an opening statement and called one of the defendants as a witness. Thereupon the defendants moved to exclude all evidence on the ground the complaint did not state a cause of action. When this was granted and plaintiff was refused an opportunity to amend, the motion for judgment on the pleadings was made and granted. From these two factors defendants contend that the Bice case is authority for the proposition that only if other rulings besides a motion for judgment are made a new trial may be granted. But this construction of the holding in the Bice case overlooks the fact that the court there approved the holding in Tregambo v. Comanche Mill & Mining Co., 57 Cal. 501, 505, quoted from Smith v. City of Los Angeles, 84 Cal.App.2d 297, 190 P.2d 943; "'A trial is the examination before a competent tribunal, according to the law of the land, of the facts or law put in issue in a cause for the purpose of determining such issue. When a court hears and determines any issue of fact or of law for the purpose of determining the rights of the parties, it may be considered a trial.' (Emphasis added.)" [129 Cal.App.2d 342, 277 P.2d 144.] It also quoted with approval from cases holding that orders sustaining demurrers constituted trials on the merits and that the judgments based thereon could be vacated on motions for new trial. We can see no good reason why, when a case is called for trial, there have to be preliminary motions considered in order for the action of the court in ruling on a motion for judgment on the pleadings to constitute a trial of issues of law.
It may be that the holding in the Bice case, 129 Cal.App.2d at page 356, 277 P.2d at page 115, that 'whether evidence is received or not, a motion for judgment on the pleadings is granted, the ruling may be reviewed on a motion for a new trial' is dictum, for the reason that in that case, prior to the making of the motion for judgment on the pleadings the plaintiff made an opening statement and the defendant moved to exclude all evidence upon the ground that the complaint failed to state a cause of action and the court granted the motion. However, on appeal, the same contention was made by the plaintiffs as is made by plaintiff here, namely, that no issue of fact was decided by the trial court and that the judgment was decided on issues of law alone. The reviewing court analyzed cases like Abbey Land & Improvement Co. v. San Mateo County, supra, 167 Cal. 434, 139 P. 1068, and Hotel Park Central v. Security-First Bank, supra, 15 Cal.App.2d 293, 59 P.2d 606, which had held that motions for judgment on the pleadings unaccompanied by other procedure did not constitute trials of an issue of fact and that therefore no new trial would lie. The court then pointed out a number of instances in which it has been held that the determination of issues of law constituted a trial for the purposes of section 657, which provides grounds for new trial, such as granting a nonsuit upon an opening statement, Craig v. Hesperia Land & Water Co., 107 Cal. 675, 40 P. 1057; Carton Corp. v. Superior Court, 76 Cal.App. 434, 436, 244 P. 932; dismissal of a case for failure of the plaintiff to deposit in court a certain sum of money, Green v. Duvergey, 146 Cal. 379, 80 P. 234; the granting of a directed verdict, Steele v. Werner, 28 Cal.App.2d 554, 556, 83 P.2d 56. The court then quoted, 129 Cal.App.2d at page 353, 277 P.2d at page 114, with approval from Smith v. City of Los Angeles, supra, 84 Cal.App.2d 297, 190 P.2d 943; "A definition of the word 'trial,' one quoted and never to our knowledge disapproved, is found in the case of Tregambo v. Comanche Mill & Mining Co., 57 Cal. 501, 505, * * *" following with the quotation hereinbefore set forth. It further quoted from the Smith case to the effect that the sustaining of a demurrer without leave to amend constitutes "a trial on the merits * * *", 129 Cal.App.2d at page 354, 277 P.2d at page 114, for the reason: "The foregoing definition of a 'trial' includes trials which involve only questions of law. * * *" 129 Cal.App.2d at page 354, 277 P.2d at page 114. The court also stated 129 Cal.App.2d at page 352, 277 P.2d at page 113: 'The Code of Civil Procedure declares that 'Issues arise upon the pleadings when a fact or a conclusion of law is maintained by the one party and is controverted by the other. They are two kinds: 1. Of law; and, 2. Of fact', § 588, and that 'An issue of law must be tried by the court, unless it is referred upon consent', § 591. Section 657 provides that a new trial may be granted on any one of several grounds, one of which is error in law occurring at the 'trial."
Illustrating the confusion in the authorities upon the subject of what is 'a trial' is the situation with reference to the granting of a judgment upon the sustaining of a demurrer without leave to amend. In Confar v. Whelan, supra, 1935, 8 Cal.App.2d 101, 46 P.2d 991, the court without considering the fact that the new trial section, Code Civ.Proc. § 657, provides for new trial on questions of law, held that because section 656 states 'A new trial is a re-examination of an issue of fact in the same court after a trial and decision by a jury, court, or referee,' a new trial can be granted only where there was an issue of fact, and could not be granted after a judgment on an order sustaining demurrer without leave to amend. Then in Smith v. City of Los Angeles, supra, 1948, 84 Cal.App.2d 297, 190 P.2d 943, the court reviewed most of the cases upon the subject prior thereto, although it did not consider the Confar case, and flatly held such judgment constituted judgment 'after trial.' 84 Cal.App.2d at page 305, 190 P.2d at page 948. Among other reasons it said, 84 Cal.App.2d at pages 304-305, 190 P.2d at page 948: 'The very fact that judgments have been rendered would seem to strongly imply that a 'trial' has been had, for as said by the Supreme Court in Matter of Lambert, 134 Cal. 626, 632, 66 P. 851, 854, 55 L.R.A. 856, 86 Am.St.Rep. 296:
"* * * It is a cardinal principle in English jurisprudence that, before any judgment can be pronounced against a person, there must have been a trial of the issue upon which the judgment is given."
Then we have the situation with reference to a judgment upon an agreed statement of facts. In Smith v. City of Los Angeles, supra, 84 Cal.App.2d 297, at page 304, 190 P.2d at page 947, the court said in denying the respondent's contention: 'Were we to follow respondents' contentions regarding what constitutes a 'trial' it would necessarily result in a determination that where a cause is submitted on an agreed statement of facts, there was no 'trial' because no determination of any issue of fact was involved, but only one of law, viz., what judgment should be entered.'
Yet in Pahlka v. McCormick, 123 Cal.App.2d 763, 267 P.2d 390, Quist v. Sandman, 154 Cal. 748, 753, 99 P. 204, and Gregory v. Gregory, 102 Cal. 50, 36 P. 364, it has been flatly held that a new trial cannot be granted upon a judgment upon agreed facts for the reason that because of such agreement there can be no issue of fact before the court for decision. We would like to point out, however, that such conclusion completely eliminates without consideration subdivisions 6 and 7 of section 657. Strictly speaking, too, it would eliminate many matters which would be entitled to consideration under subdivision 1: 'Irregularity in the proceedings of the court, jury or adverse party, or any order of the court or abuse of discretion by which either party was prevented from having a fair trial; * * *.' Many matters covered by this subdivision are question of law and not of fact. Section 656 must be read with section 657.
Budrow v. Wheatcraft, 115 Cal.App.2d 517, 252 P.2d 637, and Hotel Park Central v. Security-First Bank, supra, 15 Cal.App.2d 293, 59 P.2d 606, the cases which have held that the granting of a motion for judgment on the pleadings is not a 'trial' for the purposes of section 657, base their decisions primarily upon Abbey Land & Improvement Co. v. San Mateo County, supra, 167 Cal. 434, 139 P. 1068, which so held, without, however, giving any consideration to the effect of subdivisions 6 and 7 of section 657. The Abbey case, in turn, is based upon four cases, none of which dealt with this problem and none of which likewise considered subdivisions 6 and 7. The four cases are Foley v. Foley, 120 Cal. 33, 36, 52 P. 122, and Younger v. Moore, 8 Cal.App. 237, 96 P. 1093, which dealt with default judgments, Gregory v. Gregory, supra, 102 Cal. 52, 36 P. 364, which dealt with a judgment upon an agreed statement of facts, and In re Heldt's Estate, 98 Cal. 553, 33 P. 549, which dealt with an order appointing administrator in which there was no issue joined as to any fact alleged in the petitions.
We are unable to find any case other than the Bice case, which in considering new trials after judgment on the pleadings has considered the effect of subdivisions 6 and 7 of section 657. Because of that fact, we believe that the reasoning and the determination in the Bice case are the better ones. In Stow v. Superior Court, 178 Cal. 140, 172 P. 598, and Allen v. California Mut. Building & Loan Ass'n, supra, 40 Cal.App.2d 374, 104 P.2d 851, it was held that a new trial could be granted after judgment on the pleadings because the defendant had first objected to the introduction of any evidence, and his objection had been sustained. Even the cases following the rule of the Abbey case concede that if before the defendant moves for judgment on the pleadings, he objects to the introduction of any evidence and that objection is sustained, a motion for new trial after such judgment will lie, as there has been a trial. But how is the refusal to admit evidence because the complaint fails to state a cause of action any more a 'trial * * * of an issue of fact' § 656, than the granting of a judgment for the same reason? It is completely unrealistic, and bordering somewhat upon the absurd, to require such an action precedent to a determination that the defendant is entitled to a judgment not upon any issue of fact, but because the plaintiff has failed to state a case in his complaint. And how does a judgment on the pleadings differ in effect from a judgment after the sustaining of a demurrer without leave to amend, which in Smith v. City of Los Angeles, supra, 84 Cal.App.2d 297, 190 P.2d 943, and Erganian v. Brightman, 13 Cal.App.2d 696, 700, 57 P.2d 971, was held to be a 'trial'?
Reading sections 656 and 657 together and following the reasoning of Bice v. Stevens, supra, 129 Cal.App.2d 342, 277 P.2d 106, we are compelled to the conclusion that where, as here, a case is called for trial, the parties answer ready, and then judgment on the pleadings is granted, there has been a 'trial' as contemplated by those sections.
Moreover, as will hereafter be pointed out, it has been held that the only method of obtaining in the trial court a review of that court's refusal to permit an amendment is by motion for new trial. Cook v. Suburban Realty Co., 20 Cal.App. 538, 542, 129 P. 801.
Thus the question for us to determine is whether the court erred in granting the judgment because the complaint did not state a cause of action or in refusing to permit amendment because a cause of action could be stated, or both. 2. Error. (a) Did the Amended Complaint State a Cause of Action?
The gravamen of plaintiff's complaint seems to be the failure of defendant McMinn as administratrix of Thomas Simmonds' estate to give plaintiff notice of the application to set aside his estate to Anna, after plaintiff had filed request for notice. The complaint charges that she fraudulently procured the decree, that in order to do so she fraudulently and with intent to deceive represented to the court that notice had been given in all respects as required by section 1200, Probate Code (the section requiring notice to those who have requested it). The complaint then alleges certain misrepresentations concerning the value and character of the estate and other matters made by defendant McMinn to the court upon the hearing of the petition. Plaintiff was not made aware of the proceeding and therefore did not appear in court to present the true facts. Defendants contend that this is a collateral attack upon the decree because, say they, the fraud alleged is intrinsic fraud. However, the intentional failure to give notice in a probate proceeding is extrinsic and not intrinsic fraud and was so held in Purinton v. Dyson, 8 Cal.2d 322, 65 P.2d 777, 113 A.L.R. 1230. There the executor alleged in a petition for probate of a will that the only heir at law of the testatrix was a named son, well knowing that the plaintiff was a pretermitted granddaughter of the testatrix. The will left $100 to this son and $50 to another person and the residue of the estate to the executor. Without giving any notice to the plaintiff, the executor obtained a decree of distribution distributing the estate, after payment of the specific bequests, to himself. The granddaughter then learned of the situation and brought a suit in equity to recover her share of the estate. There, as do defendants here, the defendant contended that the fraud alleged was intrinsic fraud which made the attack on the decree of distribution a collateral one. The court said, 8 Cal.2d at pages 325, 326, 65 P.2d at page 779: 'It is well settled that equity may afford relief from orders and decrees in probate proceedings for extrinsic fraud. [Citation.] But appellant insists that any fraud practiced by Schaffer was intrinsic. The theory of this contention is, principally, that fraud to be extrinsic must be practiced directly upon the plaintiff in such an action. * * * However, it is difficult to see how fraud could be practiced more directly upon one entitled to present his rights to a court than by keeping him in ignorance of the proceedings. It is true that in most cases of extrinsic fraud the defendant has said something directly to the person whose rights were involved amounting to representations that it was not necessary for such person to take any part in the proceedings. In other cases, acts have been held to amount to such representations. But the rule allowing the maintenance of an action in equity for extrinsic fraud should not be limited so strictly as to require as a basis evidence of representations made directly to the one defrauded.'
That case differs from ours in that there the fraud was practiced by the executor for his own benefit. Here it is alleged that the fraud was practiced by defendant McMinn for the benefit of defendant Anna. This fact, however, would not change the situation. In equity defendant Anna (even if she did not know of the fraud--plaintiff does not allege she did) would not be permitted to profit by defendant McMinn's fraud. The complaint prayed for the setting aside of the decree of distribution which relief could not now be granted as the estate has been closed and the administratrix discharged. The fact that plaintiff asked for relief to which she was not entitled would not deny her relief to which she was entitled. The failure to ask for a particular remedy to which the facts show that the plaintiff is entitled does not constitute a failure to plead a cause of action. MacIsaac v. Pozzo, 26 Cal.2d 809, 815, 161 P.2d 449. Plaintiff's proper request should have been to have it declared that Anna held in trust for plaintiff whatever interest the court should find plaintiff had in the property. As said in Purinton v. Dyson, supra, 8 Cal.2d 322, 327, 65 P.2d 777, 780: 'The judgment in an equitable action of this nature does not set aside the judgment or order attacked, but holds the one who fraudulently secured the property under it as a trustee for the person defrauded.' In effect, plaintiff did ask for that relief. She first asked that she be adjudged the owner of the property, then that defendants be required to prove their interests, if any, and that if the court should find they had any interest, the property should be partitioned according to their and her interests.
While badly stated and demurrable specially, had a demurrer been interposed, the complaint would have stated a cause of action for extrinsic fraud, except for the fact that it appears that the allegations as to failure to give notice and as to the fraud are on information and belief. Plaintiff should know positively whether notice was or was not given her. (In the amended complaint which the court granted her permission to file on the motion for new trial, such fact and all the allegations of fraud are alleged positively.) See Dowling v. Spring Valley Water Co., 174 Cal. 218, 222, 162 P. 894, holding that a complaint in which the allegations of fraud are on information and belief and the facts upon which that belief is based are not set forth fails to state a cause of action. For that reason the court was justified in finding that the complaint here did not state a cause of action, but at the time of the motion for judgment should have permitted plaintiff to file an amended complaint alleging the fraud positively, asking that the court decree that defendants hold in trust whatever interest the court may find plaintiff has in the property, and that if defendants have any interest therein, such interest and that of plaintiff be partitioned. 'As stated in Kelley v. Kriess, 68 Cal. 210, 212, 9 P. 129: 'If plaintiff has a good cause of action, which by accident or mistake he has failed to set out in his complaint, the court, on motion for judgment on the pleadings, should, on his application so to do, permit him to amend.' The same rule applies to the defendants' pleadings; and when the facts stated indicate that the party probably has a good cause of action or defense, but that it has been pleaded imperfectly or defectively, and the defects have not been called to his attention by demurrer or by a notice of motion for judgment on the pleadings, the court should not grant the motion without first giving the party an opportunity to elect whether he will stand on his pleadings or amend them. The granting of the motion without leave to amend would in many cases be an absolute denial of justice, and is directly opposed to the policy of the law that cases should be tried and decided on the merits.' MacIsaac v. Pozzo, supra, 26 Cal.2d 809, 815-816, 161 P.2d 449, 452; see also Beverage v. Canton Placer Mining Co., 43 Cal.2d 769, 772, 278 P.2d 694. The failure to do so was an abuse of discretion and as hereafter set forth justified the granting of a new trial and of permission to file an amended complaint. 2. Error. (b) Notice of Motion.
Plaintiff's motion was based upon two grounds: (1) that the judgment is against law; (2) that the court erred in refusing to grant plaintiff leave to amend her complaint. Defendants contend that the second ground is not mentioned in section 657, Code of Civil Procedure, which sets forth the grounds for a new trial, and that plaintiff is limited to the other ground specified in her motion, that the judgment is against law, which is a ground provided in subdivision 6. Defendants then contend that 'against law' would not cover error in refusing to grant permission to amend. See Brumagim v. Bradshaw, 39 Cal. 24, 35, to the effect that subdivision 6 of section 657 is exclusive of any of the other subdivisions. Bice v. Stevens, supra, 129 Cal.App.2d 342, 277 P.2d 106, holds in effect that an improper granting of a judgment on the pleadings does not come within subdivision 6 but does come within subdivision 7 as 'Error in law, occurring at the trial * * *.' As we have heretofore shown, that portion of the court's order which granted judgment on the pleadings (in effect, sustaining a demurrer to the complaint) was proper because of the allegations of the complaint being merely on information and belief. But the court included in the order a denial of the right to amend. This was improper. Thus the order as a whole, being partially valid and partially invalid, would be reviewable under subdivision 7 of section 657 as an 'Error in law, occurring at the trial * * *.' It could also be reviewed under that portion of subdivision 1 which reads '* * * any order of the court or abuse of discretion by which either party was prevented from having a fair trial; * * *.'
In Cook v. Suburban Realty Co., supra, 20 Cal.App. 538, 542, 129 P. 801, 803, it was held: 'The action of a trial court refusing a party leave to amend his pleading after issue joined can only be reviewed on a motion for a new trial, and in such case, in order that a review of such action may be had, the notice * * * must set forth' the portion of subdivision 1 of section 657 above quoted. While the Cook case states, in effect, that abuse of discretion in denying a motion to amend can only be brought under subdivision 1, that statement must be considered in connection with the type of order being there considered. The defendant had moved for permission to amend its answer. The order merely denied the motion. In our case the order did two things, one right, one wrong. In such a situation the motion for new trial to consider the order may be made either under subdivision 1 or 7.
This brings us to the question whether the notice of motion for new trial has to specifically mention the subdivision or subdivisions under which it is brought or set forth the language of the subdivisions. We do not think so. It is sufficient if the statement of the fact of refusal (here, 'That the court erred in refusing to grant plaintiff leave to amend her complaint') is a sufficient specification of error to acquaint both court and counsel with the particular error claimed. It appears that a test of the sufficiency of the notice of motion is whether the adverse party 'is fully apprised of the grounds to be urged * * *.' Bauer v. Helene Curtis Industries, Inc., 117 Cal.App.2d 66, 68, 254 P.2d 931, 932. Another test appears in Williams v. Hawley, 144 Cal. 97, 99, 77 P. 762, 763, see American Type Founders' Co. v. Packer, 130 Cal. 459, 461, 62 P. 744: 'To enable this court to review the action of the court below, the record must show precisely what action was invoked in that court, and the precise ruling that was made therein, and consequently it is necessary to state in the motion the particular reasons upon which it will be based.' The specification in our case meets both of these tests. In McNeely v. Hill, 52 Cal.App. 184, 186, 198 P. 427, 429, it was held that an order granting new trial specifying as the ground therefor 'plaintiff's contributory negligence,' was, in effect, an order granting the motion upon the ground of the insufficiency of the evidence.
In connection with the ground mentioned in subdivision 1 of section 657, one other matter must be considered. Section 658 provides that when an application is made under said subdivision 1, it must be made on affidavits. Ordinarily a motion for new trial under that subdivision cannot be granted if the motion is not supported by affidavits. Bakurjian v. Pugh, 4 Cal.App.2d 450, 452, 41 P.2d 175. An exception exists where the facts upon which the party moving for new trial relies appear on the face of the record. In Webber v. Webber, 33 Cal.2d 153, 199 P.2d 934, the plaintiff moved for a new trial under subdivision 1 of section 657, specifying irregularities and abuse of discretion by the court by which she was prevented from having a fair trial. The defendant contended that because she had filed no affidavits the action of the trial court in granting her a new trial on said grounds was erroneous. The reviewing court said, 33 Cal.2d at page 164, 199 P.2d at page 941: '* * * where, as here, the party moving for a new trial under subdivision one of section 657 relies wholly upon facts appearing upon the face of the record, the reason for the rule requiring affidavits ceases and such rule should be held inapplicable (Civ.Code, sec. 3510). To hold otherwise would do violence to the principle that the law does not require idle acts. (Civ.Code, sec. 3532.) While there is language in two decisions indicating a contrary view (In re Estate of Magerl, 201 Cal. 162, 168, 256 P. 204; Jennings v. Day, 7 Cal.App.2d 555, 558, 46 P.2d 193), such language is based upon a slavish adherence to the letter of the statute without consideration of the obvious reason and purpose thereof, resulting in an undue limitation upon the power of the trial court in passing upon a motion for new trial, and of the reviewing court on appeal. We therefore believe that such language should be disapproved.' In our case the facts appear upon the face of the record, and to repeat in an affidavit the record showing the court's refusal to permit an amendment would be an idle and unnecessary act. To require it would be carrying technicalities to an extreme.
While it is true that the right to move for a new trial is statutory and requires that the procedure provided by section 657 et seq. be followed, as stated in Smith v. Ibos, 22 Cal.App.2d 551, 552, 71 P.2d 847, and that there must be a strict compliance therewith, we find nothing in that case or others upon the subject which conflicts with the views herein expressed to the effect that such compliance exists when the tests above mentioned have been met.
Holding, as we do, that the order granting the new trial was proper, plaintiff's appeal from the judgment becomes moot and should be and hereby is dismissed. The order granting new trial is affirmed.
PETERS, P. J., and FRED B. WOOD, J., concur. --------------- * Opinion vacated 315 P.2d 305. 1 During this appeal Rose Simmonds died, and the administratrix of her estate was substituted as plaintiff. For convenience, however, 'plaintiff' as used herein will refer to Rose Simmonds. 2 Hereinafter the amended complaint will be referred to as 'complaint.' 3 She held the other undivided one-half interest. It went to her heirs and is not involved here. 4 The order granting motion for judgment on the pleadings recites 'The above-entitled cause came on regularly for trial * * *' 5 Including Allen v. California Mut. Building & Loan Ass'n, 40 Cal.App.2d 374, 104 P.2d 851; Abbey Land & Improvement Co. v. San Mateo County, 167 Cal. 434, 139 P. 1068, 52 L.R.A.,N.S., 408; Confar v. Whelan, 8 Cal.App.2d 101, 46 P.2d 991; Hotel Park Central v. Security-First Bank, 15 Cal.App.2d 293, 59 P.2d 606, cited by defendants. 6 'In determining the propriety of the action of the trial court in granting defendants' motion for a judgment on the pleadings, its ruling should be reviewed in the same manner as would be a judgment of dismissal following the sustaining of a general demurrer to the complaint.' Beverage v. Canton Placer Mining Co., supra, 43 Cal.2d 769, 772, 278 P.2d 694, 697.