This is an original proceeding in prohibition to prevent the superior court from hearing an application by one Mabry McMahan, who alleges that he is a creditor of the estate, to set aside an order of partial distribution of the estate of Harriet V. Brownell, deceased, on the ground that it was taken against him through his mistake and excusable neglect.
It is claimed that the application of McMahan was made after the expiration of the period of six months prescribed as a limitation thereto by section 473 of the Code of Civil Procedure.
1. The petition for partial distribution of the estate was made by Edward Earle Brownell and W.W. Brownell as devisees of the property. It was filed on March 4, 1909, and the hearing thereof was fixed for March 15, 1909. The ten days' notice by posting, required by the law, was duly given and the matter came on regularly for hearing on the day fixed. No person appeared in opposition thereto, and after the usual ex parte proofs the court orally announced that the petition was granted and the clerk made a memorandum to that effect. No order was prepared or signed at that time, and nothing further appears to have been done until March 23, 1909, when a paper purporting to be the order for partial distribution was filed in the cause. It was signed by the judge and it purported to be an order made on March 15, 1909, closing in the usual form, thus: "Done in open court and dated this fifteenth day of March, A.D. 1909." The order was on the same day, March 23, entered in the minutes of the court. The memorandum of the clerk to the effect that the petition was granted, was made in a book which the plaintiffs designate as "the rough minutes of the court," and which in the answer filed herein is styled a "blotter." There is no law providing for "rough minutes." The clerk doubtless finds it necessary, as orders are announced by the court, to make a memorandum thereof for his own guidance in entering the orders on the register of actions and in the minutes. These memoranda are *Page 706 often referred to as "rough minutes," but they do not constitute an official record of the court. They are sometimes useful as evidence, if the proper foundation is laid, but they have no inherent vitality or effect. We cannot regard this personal memorandum as in any sense a record of the court, or as an official record of any character.
The application to vacate the order was not made, nor was any proceedings to that end begun, until September 21, 1909. If the six months' limitation began to run on March 15th, the application to vacate it was clearly too late, and the court had no authority to act upon it, except to dismiss it. Section 473 authorizes the court to relieve a party from a judgment, order, or other proceeding taken against him: "provided that application therefor be made within a reasonable time, but in no case exceeding six months after such judgment, order, or proceeding was taken." The question is, When was the decree of partial distribution "taken" within the meaning of this provision?
A somewhat similar question has arisen in this and other states, where a statute provides that an appeal may be taken within a stated time "after the rendition of the judgment." In this state the former Practice Act prescribed a period of one year. In Gray v. Palmer, 28 Cal. 416, the judgment was pronounced on April 6, 1861. It was drawn up, signed by the judge, and filed on April 9, 1861, and was entered in the judgment book on June 17, 1861. An appeal taken on June 14, 1862, was held to be too late, on the ground that "there was a rendition of the judgment as early, at least, as the 9th of April," 1861, when the judgment was formulated, signed, and filed. In Peck v. Courtis, 31 Cal. 209, a final judgment in partition on confirmation of the report of referees was ordered on December 22, 1863, but it was not entered until July 25, 1864. An appeal was taken on July 8, 1865, less than one year after the entry but more than a year after the judgment was ordered. It was held that the order for judgment was equivalent to a rendition thereof and that the appeal was barred.Genella v. Relyea, 32 Cal. 159, was a case similar to Gray v.Palmer, 28 Cal. 416, and it was decided the same way, the court saying, however, that the time for taking an appeal began to run at the time judgment was ordered, citing Peck v. Courtis, 31 Cal. 209. Peck v. Courtis was followed in Wetherbee *Page 707 v. Dunn, 36 Cal. 252. In New York a writ of error could be taken within two years after the "rendering of the judgment." It was held in that state that the time began to run at the time the judgment was pronounced and not from the time of its entry and that a writ sued out more than two years after the judgment was thus rendered was barred. (Fleet v. Youngs, 11 Wend. 522; Lee v.Tillotson, 4 Hill. 27.) In Nevada, the same conclusion was reached, the court holding that an appeal could be taken after rendition and before entry. (Cal. St. Co. v. Patterson, 1 Nev. 155; Kehoe v. Blethen, 10 Nev. 453.) In Estate of Newman, 75 Cal. 213, [7 Am. St. Rep. 146, 16 P. 887], and In re Cook, 77 Cal. 225, [11 Am. St. Rep. 267, 17 P. 923, 19 P. 431], it was decided that a judgment is binding on the parties and privies as soon as it is rendered and before it is entered. In Crim v.Kessing, 89 Cal. 488, [23 Am. St. Rep. 491, 26 P. 1074], the following is laid down as the correct rule under the present code: "Under the provisions of the Code of Civil Procedure, whenever findings are required there can be no `rendition of the judgment' until they are made and filed with the clerk. Findings of fact, however, are required only `upon the trial of a question of fact,' and they may in all instances be waived. Wherever they are waived or are not required, the entry of its decision in the minutes of the court constitutes the `rendition of the judgment' in the same manner as it did under the former system." (See, also, San Joaquin etc. Co. v. West, 99 Cal. 347, [33 P. 928];First Nat. Bank v. Dusy, 110 Cal. 76, [42 P. 476], and Painter v. Painter, 113 Cal. 375, [45 P. 689], approving this rule.)
The word "taken," as used in section 473, is, as we think, used in the same sense as the words "render" or "rendition," when used with reference to a judgment. The word "rendered" is appropriately used in reference to a judgment or decree, but not to a proceeding or order. The phrase in question embraced judgments, orders, and proceedings, and the word "taken" was adopted as a term alike applicable to either or all of them, and having relatively the same meaning as "rendition."
But giving full force to the proposition that the order of partial distribution of the Estate of Brownell is to be considered as having been "taken" when entered on the minutes, *Page 708 we cannot perceive how this can aid the plaintiffs here. The entry in the so-called "rough minutes" was, as we have seen, no official record of the order for judgment. The matter granted still remained a mere oral announcement. Where findings are filed, which constitute the rendition of a judgment, and where, of course, the conclusions of law signed by the judge show what judgment is to be entered, it has been repeatedly held that the court retains power to amend or change the conclusions of law so as to point to a different judgment and to enter a judgment different from that first announced, and that this power continues until the entry of the judgment. (Condee v. Barton,62 Cal. 1; Crim v. Kessing, 89 Cal. 488, [23 Am. St. Rep. 491, 26 P. 1074]; Broder v. Conklin, 98 Cal. 363, [33 P. 211]; Brady v. Burke, 90 Cal. 5, [27 P. 52]; First Nat. Bank v. Dusy,110 Cal. 76, [42 P. 476]; O'Brien v. O'Brien, 124 Cal. 426, [57 P. 225].) In the Brownell Estate there was no record of any decision or judgment given by the court, until the filing of the signed order on March 23d. The code provides that after the hearing of a petition for partial distribution, if the necessary facts are shown, the court must make an order requiring of the distributees a bond for the payment of their share of the debts, and directing that the distribution prayed for be made when such bond has been given and approved by the court. (Code Civ. Proc., sec. 1661.) The signed order recites that the bond required had been given and approved and it directed the distribution positively and without any condition precedent. The order must therefore have beeen prepared, approved, and signed by the judge at some time after the hearing and granting of the petition. Under the rule stated in Crim. v. Kessing, 89 Cal. 488, [23 Am. St. Rep. 491, 26 P. 1074], findings not being here required, the order would not be "taken" until it was in some manner entered in the minutes of the court, and here there was no such entry until the formal order or decree was entered at length in the minutes. We think that rule should perhaps be modified in cases like the one at bar so that the signing and filing of the formal order would constitute a "taking" thereof so far as an application for relief under section 473 is concerned. But as it was not signed and filed until March 23d, an application to vacate it would be in time if made within six months from that date. *Page 709
Furthermore, the rule that the court may change its conclusions of law, after they are filed, and render a different judgment from that first announced would seem to be equally applicable here. No findings being required, and the court having merely made an oral statement of its decision, it might, before that decision was recorded, or signed and filed, change it in any respect and render a different decision. Whether or not it could by such change affect things done by the parties under the order as first announced, and before any change was made and announced, is a question not here involved. Nor are we concerned with the effect of an announcement of a decision or order against one who was then present. The party here seeking relief was not present and he had no actual notice or knowledge of the proceeding, nor any knowledge of the order until it was filed. As to such a party there should be some fixed manifestation of the order or proceeding before it can be considered as "taken" against him, so as to set the period of limitation in motion. We perceive in this no hardship upon the parties in whose favor the order, judgment, or proceeding is taken. They have it in their power to set the time running by procuring the appropriate entry to be made. Our conclusion is that the time began to run on March 23d and not before.
2. The plaintiff further contends that the application of McMahan for relief was not made on September 21st, nor until after the period of six months from March 23, 1909, had expired. This contention cannot be upheld. On September 21, 1909, while the court was in session, McMahan appeared and formally moved the court to set aside the order of partial distribution, stating at length the grounds of the motion and filing affidavits in support thereof. Thereupon the court made an order that the motion be heard on October 4, 1909, and requiring the persons to whom distribution was made, naming them, and all others interested, to appear at that time and show cause why the motion should not be granted. On the same day the distributees and the executor were served with a copy of the order and a notice that the motion would be pressed to a hearing on October 4, 1909. This was a sufficient application within the time limited. Section 473 provides, in effect, that the relief therein specified may not be given until after notice to the adverse party, but it does not provide that no application for the relief can be *Page 710 made to the court until after such notice has been given. If it did require this, since five days' notice must be given, the effect would be to reduce the six months' period by five days. It is the application which is to be made within the six months. A motion is an application for an order. The letter as well as the spirit of the law is fulfilled where the party appears and moves the court for the relief within that period, and thereupon the court makes an order on the adverse parties to show cause on a day fixed why the motion should not be granted, and they are duly notified thereof. There is no decision of this court contrary to this. Spencer v. Branham, 109 Cal. 336, [41 P. 1095], was a proceeding in a justice court, and no application was made to the court within the time limited. A written statement of the motion to be made was handed to the justice while he was engaged in other occupations and was not doing judicial work nor in session as a court. In Thomas v. Superior Court, 6 Cal.App. 629, [92 P. 739], the only thing done within the six months was to serve a notice on the adverse party and file it in the clerk's office. This was not in any sense an application to the court. It was merely a notice that at a future time, beyond the six months allowed, such an application would be made. This was not sufficient. "The attention of the court must be called to it and the court moved to grant it." (People v. Ah Sam, 41 Cal. 650.) This was done by McMahan in the present case; the grounds were fully stated and the action of the court invoked, and we hold that to be a sufficient making of the application within the meaning of the code.
It follows that the court had jurisdiction to entertain and decide the application on its merits and that prohibition will not lie.
The writ is denied.
Angellotti, J., Sloss, J., Lorigan, J., Henshaw, J., and Melvin, J., concurred
Rehearing denied. *Page 711