I dissent.
Construed as the majority now interpret and apply our order, I think that we erred against a basic policy of law in Young v. Hampton (1951), 36 Cal.2d 799, 806 [228 P.2d 1], We erred not in reversing the judgment there appealed from but in directing the trial court to enter a different judgment as specified, and thereby, now rule the majority, foreclosing the parties from litigating new issues, issues which had never been tendered or joined, let alone adjudicated.
I would not so construe our order. It can be given full effect and still permit the joining and determination of the issues now sought to be raised. We should not unnecessarily construe our own order in a manner which both brands it as erroneous and which precludes a party a day in court. The order reads “The judgment is reversed with directions to the trial court to enter judgment denying Helen Young relief upon the cost-plus contract, and denying the Hamptons any recovery for rent.” The plaintiff had recovered judgment in the trial court based on the cost-plus contract. On appeal it was contended, and the contention sustained, that the cost-plus contract was invalid. This warranted reversing the judgment based on the cost-plus contract but it does not warrant an order which precludes the plaintiff from litigating issues which would become material only after the cost-plus contract had been held invalid and the judgment thereon reversed. And our order does not on its face purport to so offend. It, is the judgment, and, of course, only the judgment based on the cost-plus contract, which is reversed; the direction *658to the trial court is “to enter judgment denying Helen Young [plaintiff] relief upon the cost-plus contract, and denying the Hamptons any recovery for rent.” (Italics added.) An order that judgment be entered denying the plaintiff any relief whatsoever arising out of her transaction with the Hamptons would have been easy to write if the court had intended it, rather than the order as drawn purporting to limit its applicability, insofar as plaintiff is concerned, exclusively to “relief upon the cost-plus contract.”
I think also that we improperly prejudge a cause when we hold in effect, as the majority implicitly do, that it would necessarily be an idle act for the plaintiff to present, and beyond the jurisdiction of the court to entertain, an application for some form of legal or equitable relief, the nature and theory of which we do not know and which we now gag the plaintiff from disclosing.
Furthermore, I do not agree with the unnecessarily broad and in some applications inaccurate statement in the majority opinion that “an unqualified reversal by the reviewing court presumes that the cause has been remanded for a retrial. ... In effect, the order or judgment appealed from is vacated.” Contra, see People v. Hardisson (1882), 61 Cal. 378, 380; People v. Lee Look (1904), 143 Cal. 216, 220 [76 P. 1028] ; People v. Coronado (1904), 144 Cal. 207 [79 P. 418]; People v. Lauman (1922), 59 Cal.App. 144, 146 [210 P. 421]; People v. Hudson (1928), 92 Cal.App. 593 [268 P. 687] ; People v. Commons (1944), 64 Cal.App.2d Supp. 925, 937 [148 P.2d 724].
Lastly, it should not be presumed, and I think that petitioner has not established, that the respondent court will either exceed its jurisdiction, fail to exercise it properly on the facts as they may be made to appear, or neglect to give proper effect to the order which we made, if allowed to proceed.
Accordingly, I would deny the petition for the writ.