Key System Transit Lines v. Superior Court

GIBSON, C. J., Concurring.

Ordinarily, if there is a right to an immediate review by appeal that remedy is considered adequate, and prohibition will not lie unless the petitioner can show some special reason why the remedy of appeal is rendered inadequate by the particular circumstances of his case. (See Phelan v. Superior Court, 35 Cal.2d 363, 370 [217 P.2d 951].) The order under attack, from which no appeal was taken, is a special order after final judgment which petitioner claims was in excess of jurisdiction and void. It was held in the Phelan case, which was decided after petitioner applied for the writ herein, that such an order is appealable, but prior thereto its appealability was uncertain. Although it has now been established that petitioner had an adequate remedy by appeal, the availability of that remedy was not clear at the time the order of vacation was made and, accordingly, we should permit the writ to be used to test the question of jurisdiction. (Phelan v. Superior Court, 35 Cal. 2d 363, 371 [217 P.2d 951].)

The court’s jurisdiction to proceed with the trial depends on whether it had power to vacate the prior judgment of dismissal. In addition to the authority given by Code of Civil *189Procedure section 473 to set aside judgments or orders which are void, or are the result of clerical mistake or of a party’s mistake, inadvertence, surprise or excusable neglect, a trial court has inherent power under some circumstances to set aside judgments and orders which it has made inadvertently and which are not actually the result of the exercise of judgment. (Bastajian v. Brown, 19 Cal.2d 209, 214-216 [120 P. 2d 9]; Carpenter v. Pacific Mut. Life Ins. Co., 14 Cal.2d 704, 708-710 [96 P.2d 796]; Estate of Goldberg, 10 Cal.2d 709, 713-716 [76 P.2d 508]; Carter v. J. W. Silver Trucking Co., 4 Cal.2d 198, 203-205 [47 P.2d 733]; Lauchere v. Lambert, 210 Cal. 274, 276-278 [291 P. 412]; Robson v. Superior Court, 171 Cal. 588, 590-593 [154 P. 8]; Wiggin v. Superior Court, 68 Cal. 398, 400-403 [9 P. 646].) Error which is essentially judicial, however, rather than clerical or inadvertent, may not be corrected under the court’s inherent power but only under appropriate statutory procedure, and a court may not vacate a judgment or order merely because it failed to consider or give the proper weight or effect to some evidence before it. (Phillips v. Trusheim, 25 Cal.2d 913, 916 [156 P.2d 25]; Bastajian v. Brown, 19 Cal.2d 209, 214-216 [120 P.2d 9]; Estate of Burnett, 11 Cal.2d 259, 262 [79 P.2d 89]; Stevens v. Superior Court, 7 Cal.2d 110, 112-114 [59 P.2d 988]; Dyerville Mfg. Co. v. Heller, 102 Cal. 615, 617 [36 P. 928]; Egan v. Egan, 90 Cal. 15, 20-22 [27 P. 22]; see Drinkhouse v. Van Ness, 202 Cal. 359, 369 [260 P. 869].)

Here the order of vacation does not affirmatively show that it was made on grounds recognized by section 473 or on the ground that there had been some judicial inadvertence. However, since petitioner is making a collateral attack upon the order, we must indulge in every presumption in support of the order, and any condition of facts consistent with its validity and not affirmatively contradicted by the judgment roll will be presumed to have existed. (Phelan v. Superior Court, 35 Cal.2d 363, 374-375 [217 P.2d 951]; Wells Fargo & Co. v. City etc. of San Francisco, 25 Cal.2d 37, 40 [152 P.2d 625]; Borenstein v. Borenstein, 20 Cal.2d 379, 381 [125 P.2d 465].) It is, of course, true that where the trial court’s order shows without question the basis for the action, it will be deemed to speak the truth on that point. (See Hahn v. Kelly, 34 Cal. 391, 405 et seq. [94 Am.Dec. 742]; Kaufmann v. California Mining etc. Syn., 16 Cal.2d 90, 93-94 [104 P.2d 1038]; Grinbaum v. Superior Court, 192 Cal. 528, 546-550 [221 P. *190635]; Barber Asphalt Paving Co. v. Costa, 171 Cal. 138, 140 [152 P. 296]; Johnston v. Southern Pacific Co., 150 Cal. 535, 537 [89 P. 348, 11 Ann.Cas. 841].)

Under the general rule on collateral attack, there can be no question that, if the trial judge had merely ordered vacation of the judgment, without making any recitals or statements that might be construed as reasons for his action, the presumption in favor of validity would prevail, and the order of vacation would stand. There is language, however, in Treat v. Superior Court, 7 Cal.2d 636, 641 [62 P.2d 147], to the effect that an order made on the ground of judicial inadvertence should so specify, “and that in the absence of any such statement, the action of the trial court cannot be upheld on such a hypothesis.” No authority was cited and no reason was given for this holding, and it is clearly in conflict with the long recognized general principle relating to collateral attack, that in the absence of contrary statements in the record we must presume any condition of facts consistent with the validity of a judgment or order of a court of general jurisdiction. The requirement of an express recital of the ground of judicial inadvertence constitutes an unwarranted refinement of the general rule (cf. Phelan v. Superior Court, 35 Cal.2d 363, 373 [217 P.2d 951]), and this portion of the Treat case should not be followed.

The principal question in this case, therefore, is whether the recitals in the order of vacation preclude application of the presumption in favor of validity.

The order recites that it appeared to the court “upon further consideration and a more complete presentation of the facts” that there was no unnecessary or inexcusable delay on the part of plaintiffs, and that it further appeared ‘ after full consideration of the facts and personal knowledge of the Court of the time required to bring such an action to trial” that the rights of defendant had not been prejudiced through any fault of the plaintiffs. We cannot tell what facts were presented or considered on the second hearing, and for all that appears in the record a showing may have been made which justified vacation of the order under section 473 or on the.ground of judicial inadvertence. We are not required to speculate as to what showing was made or as to what grounds were relied upon by the court in support of its action. There is nothing in the recitals of the order of vacation or elsewhere in the record which would foreclose the presumption of any state of facts necessary to support the *191order as a proper exercise of the court’s statutory or inherent powers, and we must assume that such facts were before the trial court as would justify it in vacating the judgment of dismissal.

For these reasons I concur in the denial of the peremptory writ.

Schauer, J., concurred.