In the petition for a rehearing filed herein it is stated: "The opinion herein is in error in stating that the appeal is prosecuted from the judgment-roll alone." We have reread the opinion carefully and fail to find any statement or any reasoning that would suggest that we claimed or assumed, in considering or deciding the case, that the record on appeal consisted only of the judgment-roll. On the contrary, the opinion expressly referred to the "statement on appeal," and discussed the force and effect of certain statements of facts therein contained. The court, in considering the case, at all times had it clearly in mind that it was an appeal from a judgment supported by a "statement on appeal," which was deemed for all purposes a bill of exceptions, and that the record contained the full judgment-roll properly certified to, as was also the "statement on appeal," and had no other thought.
Counsel for the appellant, in his brief filed before the cause was submitted, did not raise the point that the judgment was erroneous, but only contended it was void. In considering the claim made that the judgment was void, we first considered the question of whether an inspection of the judgment-roll alone would disclose that it was void, and held that it did not. It was stated in that connection that the order directing the attorneys for plaintiff to prepare findings is not made by law a part of the judgment-roll, and an inspection of it would not disclose that any such order had ever been made, and said: "Upon the face of the judgment-roll *Page 624 there appears a judgment of a competent court upon a subject matter, within its jurisdiction, against a party properly before it and such a judgment as it was by law authorized to make. No matter what errors in practice or procedure occurred, such a judgment will not be held to be void." We still adhere to the above statement and conclusion. (See, in addition to the authorities referred to in the opinion, People v. Davis,143 Cal. 673, [77 P. 651]; Butler v. Soule, 124 Cal. 69, [56 P. 601]; Jacks v. Baldez, 97 Cal. 91, [31 P. 899]; People v.Temple, 103 Cal. 447, [37 P. 414].)
In looking over the opinion it is noticed that, on page 2, line 3, it is said: "The judgment is not void." By inadvertence the words "on its face" were omitted, and it is probably this omission that has misled counsel as to the meaning and scope of the decision. The opinion will be corrected to read: "The judgment is not void on its face."
We next considered the case in view of the whole record, including the judgment-roll and statement on appeal. From the statement on appeal we found that the court had ordered the attorneys for the plaintiff to prepare findings; and that they were prepared and signed on the same day, but we held that the statement did not affirmatively show error, in that it did not show that appellant did not waive service of the findings upon him, and held that the judgment could not be reversed unless error was affirmatively shown, all presumptions being in favor of the regularity of the court's rulings, finding, and decision. The questions of whether the provisions of section670 of the Code of Civil Procedure were mandatory or directory were fully disposed of for the purposes of this case, when we held that its provisions were passed for the benefit of individual litigants, not from considerations of public interest, and that a litigant could waive the five days' notice.
All points in the case have received careful consideration in the light of the judgment-roll and statement on appeal, and being satisfied with the conclusion reached, the petition for a rehearing is denied.
Chipman, P. J., and Hart, J., concurred.
A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on July 31, 1916. *Page 625