Pashgian v. Stephenson

100 P. 1075, 10 Cal. App. 36, 1909 Cal. App. LEXIS 288

• Court: California Court of Appeal
• Decided: February 5, 1909
• Docket: Civ. No. 563.
• Status: Published

Opinion

ALLEN, P. J.

Appeal by plaintiff upon a bill of exceptions from a judgment rendered in defendant’s favor.

The action was one for forcible entry and detainer. The court below tried the case on the thirtieth day of October, 1907, and on such date rendered judgment in favor of defendant and against plaintiff. On February 28, 1908, plaintiff gave notice of appeal from such judgment, and on the third day of March following filed his undertaking on appeal. There is nothing in the record indicating that any motion for a new trial was filed, or any order made in reference thereto, notwithstanding which the court, on May 15, 1908, against plaintiff’s objections, signed and filed in said action another set of findings and conclusions of law and rendered another judgment in the same proceeding in defendant’s favor and against plaintiff. From this last judgment plaintiff also appeals. The appellant has dismissed his first appeal and nothing remains for consideration but the appeal from the judgment of May 15, 1908.

It is conceded by both parties, and very properly so, that the court below was without jurisdiction to file additional findings or render any judgment thereon after the appeal from the first judgment was perfected and pending in this court. The fact that the appeal which terminated the jurisdiction of the trial court has since been dismissed does not in any wise affect the question involving the power of the trial court t'o act in the manner stated while such appeal was actually pending.

The judgment made and entered on May 15, 1908, is therefore reversed, with costs to appellant.

Shaw, J., and Taggart, J., concurred.