THE CITY OF SAN DIEGO, Petitioner, v. THE SUPERIOR COURT OF SAN DIEGO COUNTY et al., Respondents, 36 Cal. 2d 483

TRAYNOR, J. The city of San Diego seeks a writ of prohibition to restrain the superior court from proceeding with the trial of a condemnation action pursuant to an order vacating part of an earlier order. The case is presented on demurrer by two of the defendants in the condemnation action, as real parties in interest, who are hereinafter referred to as respondents. On December 14, 1945, the city brought an action to condemn certain land needed in the development of Mission Bay Park in the Mission Bay area of the city. Respondents owned realty included among the large number of parcels involved.

Summons on the complaint was issued on December 14,1945, and served on respondents on July 31,1946. Default was entered against them on December 12,1946, and a default judgment was entered on December 13,1946. It was adjudged that the value of the property was $18,000 on December 14, 1945, and petitioner deposited this amount in court.

On May 9, 1947, respondents filed notice of a motion to set aside the default and judgment on the grounds that they were entered “prematurely and without authority of law” and “through the mistake, inadvertence, surprise, and excusable neglect of defendants.” Before and during the hearing on the motion to vacate the judgment, the city offered to stipulate that the judgment be vacated and respondents allowed a trial on the issue of necessity, if the order also contained a provision that the damages be determined as of December 14, 1945, the date the summons was issued.

This offer was based on sections 473 and 1249 of the Code of Civil Procedure. Under

section 473, “The court may, upon such terms as may he just, relieve a party or his legal representative from a judgment, order, or other proceeding taken against him through his mistake, inadvertence, surprise or excusable neglect.” (Italics added.)

Section 1249 provides: “For the purpose of assessing compensation and damages the right thereof shall be deemed to have accrued at the date of the issuance of summons and its actual value at that date shall be the measure of compensation for all property to be taken, . . . provided, that in any case in which the issue is not tried within one year after the date of the commencement of the action, unless the delay is caused by the defendant, the compensation and damages shall be deemed to have accrued at the date of the trial. ...” By the offer to stipulate the city sought to preserve its right to have the damages assessed as of the date of the issuance of summons.

Respondents apparently refused so to stipulate, since there was a full hearing and argument on the motion to vacate. On May 26, 1947, after that hearing, an order vacating the default and judgment was entered.

The order also provided: “It is further ordered that the market value and damages [of this land], upon the trial of said action, shall be determined and fixed as of December 14, 1945.” Nearly three years later, on March 6, 1950, respondents filed notice of a motion to amend the order vacating the judgment by striking the part settling the date at which the property was to be valued, on the ground that this part of the order “was and is erroneous, contrary to law, and beyond the power of the court.” The motion was denied by the judge who made the original order without prejudice to its renewal at the time of trial.

The motion was renewed at that time before another judge who, after a hearing, granted it on March 28, 1950. Petitioner now seeks a writ of prohibition to prevent the trial court from proceeding to try the action on a theory of damages other than that established by the original order relieving respondents from default. The writ of prohibition will not issue when there is a plain, speedy, and adequate remedy in the ordinary course of law. (Code Civ.

Proc., §1103.) It is settled, however, that the remedy in the ordinary course of law by an appeal from the judgment at the end of the trial is not adequate when the court has no jurisdiction to proceed with the action and no appeal is available before final judgment. (Tomales Bay etc. Corp. v.

Superior Court, 35 Cal.2d 389, 392 [217 P.2d 968].) It is necessary to determine therefore whether the city could have appealed from the order modifying the order vacating the default judgment, and if not, whether the court is without jurisdiction to proceed with the trial of the action on a theory of damages other than that specified in the first order. The default judgment was vacated by the order of May 26, 1947, and accordingly, since there was no longer any final judgment in the action the order of March 28, 1950, was not appealable as a special order after final judgment. (Sharp v.

Miller, 66 Cal. 98 [4 P. 1065]; cf. Schubert v. Bates, 30 Cal.2d 785, 788-789 [185 P.2d 793].) It could be reviewed by appeal only on an appeal from the subsequent final judgment. Moreover, to be appealable as a special order made after final judgment within the meaning of

section 963 of the Code of Civil Procedure, an order must affect the judgment in some way. (Williams v. Superior Court, 14 Cal. 2d 656, 666 [96 P.2d 334].) The order of March 28, 1950, did not affect the default judgment but accepted its vacation three years earlier. Respondents contend that the order fixing the date as of which damages should be measured was merely a procedural ruling made during the course of the action and that therefore the court had jurisdiction to modify it at any time before final judgment. (See, City of Los Angeles v. Oliver, 102 Cal.App. 299, 325-326 [283 P. 298]; De la Beckwith v.

Superior Court, 146 Cal. 496, 499 [80 P. 717]; Harth v. Ten Eyck, 16 Cal.2d 829, 833 [108 P.2d 675].) In the present case, however, the order fixing the date as of which damages would be assessed was not merely a procedural order made during the course of the trial; it was an integral part of an order vacating a judgment under

section 473 of the Code of Civil Procedure specifying the terms upon which such relief would be granted. The order settled a major issue between the parties, namely, the basis on which the value of the property is to be determined. Respondents had moved to vacate the default judgment, and the trial court, in an exercise of its discretion, relieved respondents of default as to the issue of the propriety of the taking, but in effect held that because of the delay caused by respondents the city was entitled under

section 1249 of the Code of Civil Procedure to obtain the land at its value at the date of the issuance of summons. The court’s decision was arrived at after considering the conflicting claims in the affidavits and counteraffidavits of the parties, its power to limit the issues of a trial granted under

section 473, and the provisions of

section 1249 as to the date of valuation. The part of the order limiting the issues of the trial was an exercise of judicial discretion and was not entered by inadvertence or clerical error. If respondents were dissatisfied with the refusal of the court unconditionally to vacate the default judgment, their remedy was by appeal from that order (Code Civ. Proc., §§ 938, 963; Coan v. Superior Court, 14 Cal.2d 591 [95 P.2d 931]; see, Maxwell Hardware Co v. Foster, 207 Cal. 167, 170 [277 P. 327]) but they did not avail themselves of it.

In fact they raised no objection for nearly three years, and then attacked only a part of the order solely on the ground that it was legally erroneous. This was an attempt to correct a claimed judicial error. The record is clear that the city did not consent to the modification. (Cf., Phelan v. Superior Court, 35 Cal.2d 363, 373 [217 P.2d 951].) “ [J]udicial error which occurs in the rendition of orders or judgments which are the fault of an exercise of judicial discretion may not be corrected except by statutory procedure,” as for example, under sections 473 and 663 of the Code of Civil Procedure (Phillips v.

Trusheim, 25 Cal.2d 913, 916 [156 P.2d 25]; Barlow v. City Council of Inglewood, 32 Cal.2d 688 [197 P.2d 721]; Bastajian v. Brown, 19 Cal.2d 209 [120 P.2d 9]; Most Worshipful Lodge v. Sons etc.

Lodge, 91 Cal.App.2d 582 [205 P.2d 722].) “The decisions of this court are numerous and uniform to the effect that a judgment or order once regularly entered can be reviewed and set aside only in the modes prescribed by statute. . . . [S]ubject to these exceptions [inadvertence and clerical error] the order is reviewable only on appeal, and the decision of the trial court having been once made after regular submission of the motion its power is exhausted—it is functus officio. [Citations.] ” (Holtum v. Grief, 144 Cal. 521, 524-525 [78 P. 11]; Bowman v.

Bowman, 29 Cal.2d 808, 813-814 [178 P.2d 751, 170 A.L.R. 246].) Respondents contend, however, that even if the order of 1950 is void, it is a completed judicial act and therefore prohibition will not lie to review its validity. (See, Big Jim Mines v. Superior Court, 9 Cal.2d 503, 504 [71 P.2d 67]; State Bd. of Equalization v.

Superior Court, 9 Cal.2d 252, 254 [70 P.2d 482].) The writ is not sought, however, to review that order but to prevent the trial court from proceeding to trial upon all issues despite the express limitation in the original order that one of the main issues was settled and was not to be further litigated. Since it is further judicial action based upon a void order that petitioner seeks to restrain, prohibition is a proper remedy. (Hunter v. Superior Court, 36 Cal.App.2d 100, 110 [97 P.2d 492]; Stevens v. Superior Court, 7 Cal.2d 110 [59 P.2d 988].) Let the peremptory writ issue as prayed. Gibson, C.

J., Shenk, J., Edmonds, J., and Spence, J., concurred.