Opinion
Hearing Granted Aug. 5, 1948.
Original proceeding in mandamus by Telefilm, Inc., against the Superior Court of the State of California in and for the County of Los Angeles and others to compel such court and the clerk thereof to expunge from its records an order granting a new trial and to issue an execution in enforcement of the judgment.
Writ of mandamus granted [Copyrighted Material Omitted] COUNSEL
Lewinson & Armstrong, of Los Angeles, for petitioner.
Harold W. Kennedy, Co. Counsel, and Douglas De Coster, Deputy Co. Counsel,
both of Los Angeles, for respondents judge,
Freston & Files, of Los Angeles, for all other respondents.
OPINION
WILSON, Justice.
In an action entitled Telefilm, Inc., v. Harry M. Warner and others, which was tried to a jury before the Honorable Roy V. Rhodes, judge of the superior court, a verdict was rendered in favor of the plaintiff for $300,000. Judgment was entered on the verdict on December 11, 1947. Notice of entry of judgment was served and filed. The defendants served and filed their notice of intention to move for a new trial on December 24. Judge Rhodes died on January 10, 1948. Notice of the hearing of the motion for a new trial was given on January 12, and the motion was assigned for hearing before the Honorable Charles S. Burnell, a judge of the same court. On January 23, 1948, the plaintiff filed objections to the jurisdiction of the court or of any judge thereof to hear and determine the motion for a new trial. The ground of the objections was the same as that presented to this court and which will be hereinafter discussed. The plaintiff’s objections were overruled, the motion was argued, and on February 5, 1948, the following minute order was made by Judge Burnell: ‘Motion for new trial granted on following grounds: (1) Insufficiency of the evidence to justify the verdict (2) The verdict is against law (3) Errors of law occurring at the trial, etc.’
On March 30, 1948, the plaintiff, still contending that the court was without jurisdiction to hear the motion for a new trial, that the order purporting to grant the motion was void because it was beyond the court’s jurisdiction, and that the judgment was in full force and effect, demanded of respondent Earl Lippold, clerk of the court, that the issue forthwith a writ of execution for the enforcement of the judgment. He refused to do so.
Thereupon the plaintiff in the superior court action filed in this court its petition for a writ of mandate requiring the superior court and its clerk to issue an execution on the judgment and to expunge from the files and records of the court the order purporting to grant a new trial.
Respondents superior court, Judge Burnell, the clerk of the court, and the defendants in the superior court action have filed a joint demurrer and answer to the petition for a writ of mandate. The demurrer is on the ground that the petition does not state facts sufficient to warrant the issuance of a peremptory writ of mandate or any relief. The answer admits some of the allegations contained in the petition and denies others. The denials do not render it necessary that we take evidence since they do not controvert any of the facts relating to the sole question of law which we deem to be determinative of the proceeding.
1. Petitioner’s remedy is by mandamus .
An order granting a new trial suspends the right of the successful party to enforce the judgment. Bishop v. Superior Court, 59 Cal.App. 46, 49, 209 P. 1012; Etchas v. Orena, 121 Cal. 270, 272, 53 P. 798. This rule presupposes a valid order which the court has jurisdiction to make and is not applicable when the order is void.
Respondents contend that mandamus cannot be invoked because if the court was wrong in holding that it had jurisdiction to hear the motion it committed error which may be corrected on appeal. We have concluded that the lower court erred in overruling petitioner’s objections to the hearing of the motion and in making the order purporting to grant a new trial, but the question before us is not one of mere error that can be corrected in no other manner than by an appeal from the order. Since the court acted beyond its jurisdiction the order is void, is no order at all, and the judgment may be enforced.
Respondent clerk was justified in his refusal to issue the writ since he, a ministerial officer, was without right to question the validity of the order granting a new trial. We have determined that the order is void for the reason that the death of the judge who tried the case deprived the court of jurisdiction to consider the motion and that the judgment is therefore in full force and effect; hence when petitioner made demand therefor it was and now is the duty of the clerk to issue a writ of execution to enforce it. Petitioner is entitled to the fruits of its judgment and is not required to await the result of an appeal from a void order.
A writ of mandate will be issued ‘in all cases where there is not a plain, speedy, and adequate remedy, in the ordinary course of law.’ Code Civ.Proc., sec. 1086. Such writ is the appropriate remedy to compel respondent superior court and its clerk to perform the duty which the law imposes upon them to expunge from the files and records of the court the purported order granting the motion for a new trial and to issue a writ of execution as demanded. Kahn v. Smith, 23 Cal.2d 12, 14, 142 P.2d 13; Holquin v. Allison, 97 Cal.App. 126, 130, 274 P. 1037; Christ v. Superior Court, 211 Cal. 593, 595, 296 P. 612. See also Payne v. Hunt, 214 Cal. 605, 7 P.2d 302; Kraft v. Lampton, 13 Cal.App.2d 596, 57 P.2d 171; Diamond v. Superior Court, 189 Cal. 732, 739, 210 P. 36; Evans v. Superior Court, 14 Cal.2d 563, 580, 196 P.2d 107.
2. Jurisdiction of the court to grant a new trial .
At the outset and throughout our discussion the established rule must be borne in mind that the right to move for and the power of the court to grant a new trial is statutory and proceedings therefor must be strictly pursued in the manner provided by law in order that litigants may not lose their rights. Smith v. Ibos, 22 Cal.App.2d 551, 553, 71 P.2d 847; Frye v. Pacific Freight Lines, 27 Cal.App.2d 748, 750, 81 P.2d 1027; California Imp. Co. v. Baroteau, 116 Cal. 136, 138, 47 P. 1018; Diamond v. Superior Court, 189 Cal. 732, 736, 737, 210 P. 36.
That portion of section 661 of the Code of Civil Procedure applicable to this proceeding reads as follows: ‘The motion for a new trial shall be heard and determined by the judge who presided at the trial; provided, however, that in case of the inability of such judge or if at the time noticed for hearing thereon he is absent from the county where the trial was had, the same shall be heard and determined by any other judge of the same court.’ Inability and absence of the judge who presided at the trial are the only grounds stated in the code section for the hearing of the motion by another judge.
An additional reason to that above mentioned for strict construction of section 661 is this: Where a statute contains general language followed by an exception or a proviso, it will be presumed that the framers of the law left their work complete and that they intended no exception other than that expressly stated. Trout v. Ogilvie, 41 Cal.App. 167, 174, 182 P. 333; Forbes v. City of Los Angeles, 101 Cal.App. 781, 788, 282 P. 528. It is a rule of law ‘consecrated almost as a maxim’ that where a proviso follows general language it is construed strictly and takes no case out of the enacting clause which does not fall fairly within its terms; it carves special exceptions only out of the enacting clause. United States v. Dickson, 15 Pet. 141, 40 U.S. 141, 165, 10 L.Ed. 689, 698.
The first clause of section 661 is a positive direction that a motion for a new trial ‘shall be heard and determined’ by the judge who presided at the trial. Since the proviso expresses only two exceptions to the general language in the first clause— inability and absence— those words must be construed with a view of ascertaining their exact significance and the intent of the legislature in inserting them and no others in the proviso.
The question at issue is whether the inability or the absence of the trial judge referred to in that section includes the death of the judge; or, to put the query in another form, can the term ‘inability’ be applied to a deceased judge or can a deceased judge be deemed to be ‘absent’ within the meaning of section 661.
A judge is ‘a public officer who is invested with authority to determine litigated questions; one who gives a judgment.’ Webster’s New Int. Dictionary, 1947 Ed., p. 1343; United States v. Clark, 25 Fed.Cas. pages 441, 442, No. 14, 804, 1 Gall. 497, 499. Obviously when a judge dies he is no longer a public officer— a vacancy exists in the official position that he held while living (Govt. Code, sec. 1770); he is no longer vested with authority to determine litigated questions; he is incapable of giving a judgment. A person whose term of office as judge has expired is no longer a judge and a statute providing that a judge shall not act as attorney in an action which has been before him in his official capacity does not prohibit a former surrogate from acting as counsel in a proceeding that had been before him while he occupied that official position. In re Wheelock’s Will, 205 A.D. 654, 200 N.Y.S. 157.
A judge must be a ‘person.’ That term is defined as ‘a being characterized by conscious apprehension, rationality, and a moral sense; a being possessing, or forming the subject of, personality; hence, an individual human being; a particular individual.’ Webster, p. 1827. A person is a living human being. Madden v. Board of Election Com’rs, 251 Mass. 95, 146 N.E. 280, 281. ‘In law the word ‘person’ does not simply mean the physicial body, for, if it did, it would apply equally to a corpse. It means a living person, composed of body and soul.’ Morton v. Western Union Tel. Co., 130 N.Car. 299, 41 S.E. 484, 485.
After death one is no longer a person; he possesses no consciousness, no ability of apprehension or rationality; he ceases to be a human being and becomes a corpse. ‘Death’ is ‘The cessation of all vital functions without capability of resuscitation.’ Webster, p. 676. ‘It is axiomatic that a corpse is not a person. That which constitutes a person is separated from the body by death and that which remains is ‘dust and ashes." Brooks v. Boston & N. St. Ry. Co., 211 Mass. 277, 97 N.E. 760. A ‘person’ is a living human being. A dead man is not a person. When statutes refer to a person who has died they use the term ‘deceased person.’ State v. Frear, 144 Wis. 79, 128 N.W. 1068, 1072, 140 Am.St.Rep. 992; Sawyer v. Mackie, 149 Mass. 269, 21 N.E. 307. A law requiring property to be assessed to the ‘person’ appearing of record as owner does not authorize the assessment in the name of the record owner who has died, and a tax sale made pursuant to such an assessment is void. Sawyer v. Mackie, supra; Morrill v. Lovett, 95 Me. 165, 49 A. 666, 56 L.R.A. 634.
One who does not exist cannot be said to be unable to act or to be absent. A person who while living has been a judge is not a person and therefore not a judge after death. Such person is not, after death, in the category of a ‘judge’ who is unable to act or who is absent. Euphemistically a deceased person is referred to as an absent member of the family. Since we are now considering a reality there is no occasion for euphemizing.
The terms ‘inability,’ ‘disability’ and ‘absent’ can be deemed to apply only to a person in being. Since such words cannot be employed concerning something that has never had an earthly existence how can they be used in reference to one who has ceased to have such existence?
Since the terms ‘inability’ and ‘disability’ are found in the statutes and decisions hereinafter referred to the difference in their meanings, which is slight, should be understood. ‘Inability’ is thus defined: ‘Quality or state of being unable; lack of ability; want of sufficient power, strength, resources, or capacity. * * * Syn.-Incompetence, impotence, incapacity.’ Webster’s New Int. Dic., 1947 Ed., p. 1254. ‘Disability’ is defined as: ‘1. State of being disabled; deprivation or want of ability; absence of competent physicial, intellectual, or moral power, means, fitness, or the like. * * * 2. Want of legal qualification to do a thing; legal incapacity, incompetency, or disqualification.’ Webster, p. 740. Though the two words are not strictly synonymous both ‘denote a lack of ability to perform a given act or to follow a given trade or profession. * * * Inability implies lack of power (sometimes an inherent lack) to perform; it may suggest mental deficiency or temperamental unfitness, but more often it suggests lack of means, lack of health, lack of training, or the like. * * * Disability implies the loss or the deprivation of such power, as by accident, illness, disqualification, or the like; the term, therefore, is applicable not only to the resulting inability, but to the injury, the impediment or whatever it is that makes one unable to do a certain thing, hold a certain office, or the like; * * *’ Webster’s Dictionary of Synonyms, 1st Ed., p. 437.
The definitions of the two words betoken reference to living persons; neither one indicates or implies an allusion to one who was, but is not now by reason of his decease, a ‘person’ as that term is hereinabove defined.
In the decisions hereinafter cited, to which we have found no exception, the terms ‘inability,’ ‘disability’ and ‘absence’ have been constured according to the definitions found in dictionaries and in no case has any one of the words been so extended in its use as to include ‘death.’ Disability assumes a living or animate subject. The term ‘other disability’ must be given its ordinary and legal meaning and cannot be applied to a subject not in being— a deceased person. Cline v. Hammond, 4 Ohio App. 228, 192 N.E. 869, 871. In Biederzycki v. Farrel Foundry & Machine Co., 103 Conn. 701, 131 A. 739, the court held that the term ‘disability’ is manifestly used in the sence of incapacity, and refers to the living, and not to the case of death; ‘incapacity’ is synonymous with ‘disability.’ In Bishop v. Morrison-Kundsen Co., 64 Idaho 806, 137 P.2d 963, the court said that the word ‘disability’ does not mean, and was not intended by the legislature to mean, death; if the legislature had so intended it would have added after the word ‘disability’ the words ‘or death.’ The ‘disability’ of the trial judge referred to in the statute which will authorize another judge of the court to sign a bill of exceptions, means a physical or mental disability and does not include his ‘absence’ from the jurisdiction. People v. Rosenwald, 266 Ill. 548, 107 N.E. 854, Ann.Cas.1915D, 688.
Where a right is statutory and may be withdrawn or altered at the will of the legislature a litigant, through no failure of his own, may be unable to obtain relief because his situation is one not contemplated by the statute, but such misfortune does not permit the court to extend the law to cases not provided for therein. This is aptly illustrated by the successive decisions and statutes relating to the inability of a party to obtain a stenographic report of his trial. Notwithstanding the manifest hardship and injustice that would be suffered by the unsuccessful party in an action if he were unable to obtain such report for use on a motion for a new trial or on appeal the courts have adhered to the rule of strict construction of proceedings relating to a new trial. In Diamond v. Superior Court, 189 Cal. 732, 210 P. 36, decided in 1922, the trial court granted a new trial on the ground that the court reporter had died and the moving party was thereby deprived of his right to have the stenographic record of the trial. The order was annulled for the reason that the ground upon which the court acted was not one upon which a new trial could be granted. To avoid such unfairness section 953e was added to the Code of Civil Procedure (Stats.1931, ch. 239, p. 410) providing that when it is impossible to obtain the phonographic report of the trial ‘because of the death or other disability ’ of the reporter the court has power to vacate the judgment and order a new trial. In 1936 came the case of Laumann v. Conner, 12 Cal.App.2d 631, 55 P.2d 1225, wherein the stenographic reporter was neither dead nor disabled but his shorthand notes had been lost and were not available for the completion of the record on appeal. For that reason the trial court granted a motion for a new trial. Still adhering to the rule that a new trial cannot be granted except upon statutory grounds and by following the statutory procedure, the court held, 12 Cal.App.2d page 634, 55 P.2d 1225, that the word ‘disability’ in section 953e did not include mere ‘inability’ and that the loss of the shorthand notes was not such a disability of the court reporter as to warrant the granting of a new trial. Thereafter the legislature amended section 953e by adding ‘the loss or destruction, in whole or in substantial part,’ of the reporter’s notes as a further ground for the granting of a new trial. Stats.1943, ch. 1017, p. 2957. Next and last in the succession of cases on this subject is Rambo v. Rambo, 1948, Cal.App., 191 P.2d 480, wherein a motion for a new trial was made on the grounds (1) that the reporter’s whereabouts were unknown and (2) that his stenographic notes could not be found or transcribed. The court held that the first ground is not included in section 953e and assuming that the second ground comes within the term ‘loss or destruction’ the affidavits were insufficient to prove that the notes could not be found.
Prior to 1929 a motion for a new trial was not required to be heard by the judge who tried the case. Francis v. Superior Court, 3 Cal.2d 19, 28, 43 P.2d 300. In that year, in an act relating to new trials and appeals, section 661 was added to the Code of Civil Procedure requiring a motion for a new trial to be heard by the judge who tried the case, provided that in case of his inability the motion might be heard and determined by any other judge. Stats.1929, ch. 479, pp. 839, 842. In 1931 the section was amended by adding to the proviso the absence of the trial judge from the county where the trial was held. Stats.1931, ch. 768, p. 1608. The section was again amended by adding the words ‘of the same court’ after ‘any other judge.’ Stats.1933, ch. 744, pp. 1836, 1881. The lawmakers have limited the circumstances in which a judge other than the trial judge may pass on a motion for a new trial. By the original statute and two amendments they have seen fit to provide only two such circumstances and the court cannot encroach on the prerogatives of the legislature by adding another.
An example of the stringency with which the courts circumscribe the power of a judge who did not hear a case to act on a motion for a new trial is the limitation of the power given by section 662 of the Code of Civil Procedure. That section provides that in ruling on such motion the court may change or add to the findings and modify the judgment. In City of Long Beach v. Wright, 134 Cal.App. 366, 25 P.2d 541, the court held that where a motion for a new trial is heard by a judge other than the one who presided at the trial, although he may grant a new trial, he is without power to modify the findings or the judgment. This is the prerogative exclusivley of the judge who heard the case.
Whenever it has been intended that either the death or the disability or the absence of a person should be the cause or basis of the performance of his powers and duties by another, such intent has been plainly expressed by the use of apt language. In case of the death or inability of the governor to discharge his duties, or his resignation or absence from the state, they shall devolve on the lieutenant-governor. Const., Art. V, sec. 16. If an executor or administrator dies or becomes disqualified or incapable, the court shall issue letters of administration with the will annexed to another. Prob.Code, sec. 512. In a specified instance the hiring of a thing may be terminated by notice of the death or incapacity of one of the parties. Civ.Code, sec. 1934. An agency is terminated by the death or incapacity of the agent. Civ.Code, sec. 2355. We have referred to the death or disability of a court reporter as a ground for granting a new trial (Code Civ.Proc., sec. 953e) and to the strict limitation of the language of that section as originally enacted and as amended. Laumann v. Conner and Rambo v. Rambo, supra.
Respondents refer to the following language in former section 653 of the Code of Civil Procedure (repealed, Stats. 1945, ch. 40, p. 356) that ‘A judge * * * may settle and sign a bill of exceptions after, as well as before he ceases to be such judge, * * *,’ and contend that because the legislature referred to a former judge as if he were a judge after he ceased to be such and did not limit the use of the word ‘judge’ to one who remained in office, the language of section 661 should be liberally extended to include in the judiciary one who is deceased. No such analogy can be found. While reference to a person as a judge ‘after * * * he ceases to be such judge’ is an inaccurate and inept use of the word, it was the intent of the framers of the code section that a judge who tried a case and who ceased to be a judge but was still living when a bill of exceptions was ready for settlement might settle and sign it. The reason for this provision was that he knew what happened at the trial and could act upon his knowledge in settling the bill. It would not be contended that the quoted provision could be so enlarged as to empower a living former judge to act if he became incompetent.
Respondents have suggested that a comparison of the present rules on appeal with former section 653 of the Code of Civil Procedure presents an analogy to the question under discussion. They contend that the language of the rules is so general as to include all conditions that can possibly occur whereby the judge who tried the case would be unable to settle a bill of exceptions, and that section 661 should be given as broad a construction as can be ascribed to the language of the rules. We do not agree with this theory. Prior to its repeal section 653 contained a provision, following the language quoted in the preceding paragraph, that if a trial judge died, was removed from office, became disqualified, or was absent from the state a bill of exceptions could be settled in such manner as directed by the rules of the Supreme Court. While this section is no longer in force it illustrates the fact that the legislature has never had any difficulty in declaring that the death of a judge should be a reason for the performance of an act by another judge whenever such was its intent. Rule XXVII of the former rules of the Supreme Court (18 Cal.2d 22) provided for settlement of a bill of exceptions by a judge other than the trial judge for the same reasons found in repealed section 653. Rules 7(d) and 51 of the present rules on appeal (22 Cal.2d 8, 33) do not, as contended by respondents, aid in the construction they would have us place on the statute. The words ‘unavailable or unable to act’ found in the rule do not, by reason of the definitions above set forth, to which we have not found a single exception, furnish a basis for judicial legislation adding something to the statute that was not placed in it by the legislature.
There are many illustrations in other jurisdictions of rigorous adherence to the strict language of the statute in situations similar to that in the instant case. For example, the terms ‘disability’ and ‘incapable to act’ are limited to the lexicographers’ definitions and are not extended to include ‘absence’; ‘death’ is not embraced in the term ‘disability.’ One example is a succession of decisions and amendments with reference to a federal statute concerning bills of exceptions. The statute provided for the authentication of the bill of exceptions ‘by the judge of the court in which the cause was tried.’ A bill of exceptions which was allowed and signed by the successor in office of the judge who tried the case was disregarded on appeal because it was not authenticated in the manner required by the statute. It was held that the successor judge, although at the time the bill was presented for settlement he had become a ‘judge of the court in which the cause was tried,’ was without power to settle the bill since the statute required it to be settled and allowed by the judge who tried the case. It was further held that counsel were not authorized to stipulate to the correctness of the bill which had not been signed by the trial judge. Malony v. Adsit, 175 U.S. 281, 284, 287, 20 S.Ct. 115, 44 L.Ed. 163. The Malony case was decided in 1899. In 1900 the statute was amended (see 28 U.S.C.A. § 776) by adding a provision (now found in substantially the same form in Rule 63 of the Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c) that ‘in case the [trial] judge * * * is, by reason of death, sickness, or other disability, unable to hear and pass upon the motion for a new trial and allow and sign said bill of exceptions’ then the successor of such trial judge, or any other judge of the court in which the cause was tried, shall pass upon the motion for a new trial and allow and sign the bill of exceptions. See Ulmer v. United States, 2 Cir., 266 F. 176, 179. In construing the amendment in the Ulmer case and in Western Dredging & Imp. Co. v. Heldmaier, 7 Cir., 111 F. 123, 125, and Norwood v. United States, 4 Cir., 18 F.2d 577, the courts held that the term ‘other disability’ means ‘disability of like character’ to those named in the statute, to wit, death or sickness, and does not mean a disability arising from the temporary absence of the judge from the district. In each case the bill of exceptions was held to be insufficiently authenticated when signed in the absence of the trial judge by another judge who was a resident of the district in which the case was tried. The power in such a case of a judge who was not the trial judge depends strictly upon the language of the statute— ‘the death, sickness, or disability of the judge who tried the case.’ Norwood v. United States, supra.
A statute of New York, Code Civ.Proc. § 342, provided that if the county judge ‘is, for any cause, incapable to act’ in an action pending in the county court, the cause should be heard by another county judge or transferred to the supreme court. It was held that the county judge had complete legal capacity to entertain, hear and determine the action and that his voluntary absence from the state did not render him ‘incapable to act’ within the terms of the statute and did not authorize the calling in of another judge to act in his court. In re Munger, 10 A.D. 347, 41 N.Y.S. 882. A statute authorizing actions against the United States made it the duty of the ‘court‘ to file a written opinion setting forth specific findings of fact and conclusions of law, 28 U.S.C.A. § 764, but did not in express terms require the judge who heard the evidence to make the findings. While recognizing the fact that the court is a continuing entity however often the incumbent may change, it was held that the proceedings were fatally defective for the reason that the findings of fact were made by a judge other than the one who had tried the case, the trial judge having resigned without having made findings. United States v. Nugent, 6 Cir., 100 F.2d 215, 217. The constitution of West Virginia provided that ‘in case of the death * * * or other disability of the Governor’ the president of the senate should act as governor. Const. art. 7, § 16. The court held that the term ‘other disability’ did not apply when the legislature failed to declare the result of an election at which a new governor had been elected but that it meant something attaching to the person of ‘the governor’ and disabling him from occupying the office and discharging his official duties as such. Carr v. Wilson, 32 W.Va. 419, 9 S.E. 31, 35, 3 L.R.A. 64.
The courts have had occasion to distinguish between ‘death’ and ‘disability’ in cases of a different character and have held that ‘disability’ is not included in ‘death’ and that a dead person is not deemed to be ‘disabled.’ In Hill v. Travelers’ Ins. Co., 146 Iowa 133, 124 N.W. 898, 28 L.R.A.,N.S., 742, it was held that the word ‘disability’ does not express the same meaning as ‘death’; nor is it ordinarily used as signifying the same thing. ‘Disability’ is defined as a want of competent power, strength, or physical ability; weakness, incapacity; impotence. In Ferguson v. Penn Mut. Life Ins. Co., 305 Ill.App. 537, 27 N.E.2d 548, 550, the court quoted the Hill case with approval and added: ‘Disability presupposes life. Death is the antithesis of life.’ In Hinkley v. Penn Mut. Life Ins. Co., D.C., 37 F.Supp. 1018, 1023, the court rejected the plaintiff’s contention that the disability of the insured continued ‘after his death, that he wasn’t able to work, and that his condition was certainly permanent’ saying that the best answer to the argument was that the insured was not disabled but dead, and that no one could misunderstand the difference between the two words.
In section 661 there is ‘a positive requirement that the motion for a new trial shall be heard and determined by the judge who presided at the trial’ with the exceptions expressly made in that section and none other. Litigants cannot stipulate to disregard its provisions. The word ‘shall’ as used therein shows that ‘the clear intent of the Legislature was to use it in its mandatory sense.’ Francis v. Superior Court, 3 Cal.2d 19, 28, 29, 43 P.2d 300, 305.
Respondents rely on sections 184 and 187* of the Code of Civil Procedure to sustain the order. These are general provisions that do not modify the specific language of section 661, especially in view of the decisions construing the latter section and other similar statutory rules as mandatory.
Since (1) the death of the reporter did not authorize the granting of a new trial when that was not a statutory ground (Diamond v. Superior Court, supra), (2) ‘disability’ of the reporter does not mean ‘inability’ because of the loss of his shorthand notes (Laumann v. Conner, supra), and (3) ‘loss or destruction’ of his notes is not applicable in a case where the reporter’s whereabouts are unknown (Rambo v. Rambo, supra), it is manifest that only the inability or the absence of the judge who tries a case will vest jurisdiction in another judge to hear and determine a motion for a new trial.
It is better to follow the terms used in the statute and to accord to them their ordinary definitions as found in lexicons and in the decisions of the courts than to attempt, by judicial legislation, to add words not used nor intended by the legislature or to supply meanings that are unsupported by any authority.
From the foregoing discussion it follows that the demise of Judge Rhodes did not vest jurisdiction in another judge to hear and determine the motion for a new trial. Since the court was without jurisdiction to make the order purporting to grant the motion the order is void, the judgment is in full force and effect, and petitioner is entitled to have the purported order expunged from the records of the court and to have a writ of execution issued for the enforcement of the judgment. This conclusion renders it unnecessary to consider the other questions presented.
Respondents’ demurrer to the petition is overruled, and a peremptory writ of mandate is ordered to issue as prayed.
MOORE, P. J., and McCOMB, J., concur.
Sec. 184: ‘No proceeding in any court of justice, in an action or special proceeding pending therein, shall be affected by a vacancy in the office of all or any of the judges or justices thereof.’
Sec. 187: ‘When jurisdiction is, by the constitution or this code, or by any other statute, conferred on a court or judicial officer, all the means necessary to carry it into effect are also given; and in the exercise of this jurisdiction, if the course of proceeding be not specifically pointed out by this code or the statute, any suitable process or mode of proceeding may be adopted which may appear most conformable to the spirit of this code.’