FRED J. KAHN et al., Petitioners, v. B. J. SMITH, as County Clerk, etc., Respondent, 23 Cal. 2d 12

TRAYNOR, J. On August 25, 1939, Fred J. Kahn and his wife, Alice J. Kahn, brought suit against the San Diego Orange Growers and Mr. Glann Peldner. On August 22, 1940, Mr. and Mrs. Kahn served notice on the defendants in that action that the judgment in their favor had been entered on the preceding day. They were in error, the judgment actually having been entered on the 22nd. Their error was the result of misinformation in a letter to them from the county clerk.' On August 30th, the defendants served and filed a notice of intention to move for a new trial.

The motion was granted on October 22nd, more than sixty days from the date on which the notice of entry of judgment was served. Mr. and Mrs. Kahn filed a notice of appeal from, the order granting the new trial, but immediately thereafter filed a withdrawal of appeal. Subsequently they sought a writ of execution from the county clerk, which was refused. They now petition for a writ of mandamus to compel the clerk to issue a writ of execution.

If the order granting a new trial was not valid, the clerk should have issued the writ of execution, and mandamus is the appropriate remedy to enforce the performance of that duty despite the availability of an appeal. (Payne v. Hunt, 214 Cal. 605 [7 P.2d 302]; Kraft v. Lampton, 13 Cal.App.2d 596 [57 P.2d 171]; Holquin v. Allison, 97 Cal.App. 126 [274 P. 1037]; see 16 Cal.Jur. 837.) While mandamus does not lie if there is another adequate remedy, an appeal is not regarded as adequate in this type of case. (Payne v. Hunt, supra; Kraft v. Lampton, supra; Holquin v. Allison, supra; Christ v.

Superior Court, 211 Cal. 593 [296 P. 612]; Middlecoff v. Superior Court, 220 Cal. 410 [31 P.2d 200]; Evans v. Superior Court, 14 Cal.2d 563 [96 P.2d 107]; Harrison v. Superior Court, 3 Cal.App.2d 469 [39 P.2d 825].) Mandamus is available as an alternative remedy in cases where an appeal would be inadequate, and the failure to appeal cannot therefore render the trial court’s determination res judicata. (Payne v. Hunt, supra; Middlecoff v. Superior Court, supra; Conklin v. Superior Court, 1 Cal.2d 601 [36 P.2d 386]; Kraft v. Lampton, supra; Holquin v. Allison, supra; Moch v.

Superior Court, 39 Cal.App. 471 [179 P. 440]; Harrison v. Superior Court, supra.) The contention that the service of the notice did not start the sixty-day period running because the notice of entry of judgment misstated the date on which judgment was entered must be rejected for the reasons given in McCordic v. Crawford, ante, p. 1 [142 P.2d 7]. , Respondent contends that there has been no showing that the notice of entry of judgment was not served prematurely. The record shows only that service took place on the day on which judgment was entered and does not disclose the hour at which either event took place.

It is ordinarily impossible, however, to prove the hour at which

an act such as entry of judgment occurred, for records are not kept in such minute detail. (Cosgriff v. Election Commissioners, 151 Cal. 407, 409 [91 P. 98].) Fractions of days are disregarded if they do not affect the substantial rights of a party. (Cosgriff v. Election Commissioners, supra; Bellmer v. Blessington, 136 Cal. 3 [68 P. 111] ; Scoville v. Anderson, 131 Cal. 590 [63 P. 1013]; Gray v. Maier & Zobelein Brewery, 2 Cal.App. 653, 658 [84 P. 280].) In this case they do not, for the time limit for making a motion for new trial and the time limit for the court to pass on such motion starts from the day and not the hour of service. Respondent invokes

section 1013 of the Code of Civil Procedure allowing an additional day after service by mail “. . . if, within a given number of days after such service, a right may be exercised, or

an act is to be done by the adverse party. ...” This

section is inapplicable here, for the court is not an adverse party. Petitioner’s request for attorney’s fees in this action must be denied, under the rule that attorney’s fees are not ordinarily awarded to the successful party without express statutory authorization. (Los Angeles Trust & Savings Bank v. Ward, 197 Cal. 103 [239 P. 847]; see Code Civ. Proc., sec. 1021; 7 Cal.Jur. 286.) Let the peremptory writ of mandamus issue as prayed. Gibson, C. J., Carter, J., and Peters, J. pro tern., concurred.