
    [S. F. No. 11257.
    In Bank.
    December 8, 1924.]
    In the Matter of the Estate of DAVID JENNINGS BAIRD, Deceased. DAVID JENNINGS BAIRD, Petitioner, v. VERONICA C. BAIRD et al., Respondents.
    
       Appeal—Estate op Deceased Person—-Partial Distribution.— In a proceeding for partial distribution of the estate of a deceased person, where a jury trial has been had and a decree <?f partial distribution reversed on appeal, the trial court ordered to set aside the special verdicts and findings in favor of the petitioner and to enter judgment denying the petition, and the trial court entered judgment accordingly, an order granting a new trial thereafter made is appealable.
    
       Jury Trial—Constitutional Law.—The constitutional guarantee of a jury trial is fully observed when the verdict of a jury in the case is rendered and recorded, and it cannot be maintained that when a verdict is set aside by the mandate of the appellate court and a judgment ordered to be entered for the other party on the ground of the insufficiency of the evidence there has been no trial by jury, on the theory there is no verdict rendered and recorded upon which the judgment can rest.
    
       Appeal—Order Granting a New Trial—Trial by Jury.—What is meant by section 963 of the Code of Civil Procedure, allowing an appeal from an order granting a new trial in an action or proceeding tried by jury where such jury trial is a matter of right, is that there cannot be an appeal from an order granting a new trial unless there has been a trial by jury as distinguished from a trial by the court without a jury or in an equity proceeding. The language of the section is merely descriptive, and does not mean that an appeal from an order granting a new trial where there has been a trial by jury as a matter of right in which a verdict is rendered, findings made and judgment entered in favor of the plaintiff followed by the setting aside of such verdict and findings, the reversal of the judgment, the entry by direction of the appellate court of a judgment in favor of the defendant and the granting of a new trial in favor of plaintiff, is any the less an appeal based on the verdict of the jury.
    
      1. See 2 Cal. Jur. 173.
    2. See 15 Cal. Jur. 323; 16 B. C. L. 192.
    3. See 2 Cal. Jur. 173.
    
      
       Id.—Reversal of Judgment—Entering New Judgment—Order for New Trial.—The direction in such a ease to the trial court in reversing the judgment to set aside the verdicts and findings and enter judgment for respondents, the compliance with said directions by the trial court and the subsequent order granting a new trial, all have a direct connection with and are related to the verdicts of the jury, for although the successive steps taken after the rendition of the verdicts represent in a sense independent proceedings, notwithstanding, each of them depends upon and rests on such verdicts.
    
       Id.—Directed Verdict.—The contention that even in a case where the verdict was directed by the trial court no appeal could be taken from an order granting a new trial cannot be maintained.
    
       Id.—Setting Aside Special Verdicts and Findings—Ordering Judgment for Respondents—Power of Supreme Court.—In a proceeding for partial distribution of the estate of a deceased person in which a motion for nonsuit and a motion for a directed verdict were denied, the supreme court has authority in reversing a decree of partial distribution and ordering the trial court to set aside special verdicts and findings in favor of the petitioner, to^ direct the entry of judgment for the respondents.
    (1) 3 C. J., p. 507, sec. 337. (2) 35 C. J., p. 242, sec. 171. (3) 3 C. J., p. 507, sec. 337. (4) 3 C. J., p. 507, see. 337. (5) 3 C. J., p. 507, sec. 337. (6) 4 C. J., p. 1190, sec. 3227.
    MOTION to dismiss an appeal from an order of the Superior Court of the City and County of San Francisco granting a new trial. T. I. Fitzpatrick, Judge. Motion denied.
    The facts are stated in the opinion of the court.
    
      C. M. Fickert, E. A. Cunha, R. P. Henshall and Robert R. Moody for Petitioner.
    K. C. Partridge for Respondents.
   LAWLOR, J.

This is a motion to dismiss an appeal taken by the above-named respondents from an order of the superior court of the city and county of San Francisco, department 8 thereof, Honorable T. I. Fitzpatrick, Judge presiding, granting a motion for a new' trial interposed on behalf of petitioner, following the reversal by this court of a judgment based upon a petition for partial distribution in the above-entitled estate (193 Cal. 225 [223 Pac. 974]). The said judgment awarded tó petitioner the estate of decedent upon the ground that he adopted petitioner within the meaning of section 230 of the Civil Code and in reversing the judgment this court directed the lower court to set aside the special verdicts of the jury, the findings of the court, and the judgment therein; and to enter judgment for respondents denying the petition for partial distribution upon the ground that petitioner is not the adopted son or heir of decedent.

It appears that petitioner, a minor, through Lydia M. Valencia, his mother, petitioned the said superior court for an order of partial distribution in the above-entitled estate upon the ground petitioner was the adopted son and heir of the decedent as aforesaid and that decedent left a last will in which he made no provision for petitioner. Issue was joined and the case was tried by the court, sitting without a jury. The court found in favor of respondents upon the ground that the evidence did not establish an adoption and judgment was accordingly entered. An appeal was taken by petitioner from the judgment which judgment was reversed upon the ground the trial court erred in denying petitioner’s demand for a jury trial. (Estate of Baird, 173 Cal. 617 [160 Pac. 1078].) The case was then tried by jury, four special verdicts covering the four elements of adoption were rendered in petitioner’s favor, upon which verdicts and the findings of the court judgment was entered awarding him the estate left by decedent. Bespondents appealed from the judgment, which was reversed upon the ground that the evidence was not sufficient to establish an adoption. (Estate of Baird, 182 Cal. 338 [188 Pac. 43].) The case was again tried by jury and similar verdicts and judgment were respectively rendered and entered. (193 Cal. 225 [223 Pac. 974].) In due course respondents appealed from the said judgment which, as already indicated, was reversed. The judgment of reversal and the directions to the trial court were in these terms:

“It is ordered, adjudged and decreed by the Court that the Decree of Partial Distribution of. the Superior Court in and for the City and County of San Francisco in the above entitled cause be and the same is hereby reversed and the trial court is ordered and directed to set aside the special verdicts and findings and to enter judgment for appellants denying the petition for partial distribution upon the ground that respondent is not the adopted son or heir of the deceased.”

Upon the going down of the remittitur judgment was accordingly entered in favor of respondents, whereupon petitioner interposed a motion for a new trial, which was granted, the order being as follows:

“In the above entitled action it appearing from the record that the petitioner, David Jennings Baird, a minor, . . . has heretofore served and filed two notices of intention to move for a new trial herein . . . and the court being fully advised in the premises, it is now here ordered that said motions for a new trial be . . . hereby granted upon all the grounds specified . . . except upon the grounds specified in subdivisions 1, 2, 3, and 5 of section 667, C. C. P. and in this regard the court in accordance with said section 657, C. C. P. doth further grant said motion for a new trial in addition upon the ground of the insufficiency of the evidence to justify and sustain the verdict and the decision, and in this regard the court doth specify that in its opinion and decision herein, certain testimony of certain of the witnesses who testified ón behalf of the respondents to the petition herein is not true and that said testimony is not believed by the court to be credible and true and therefore that the decision herein is not sustained by the evidence.”

While the said motion for a new trial was pending an application was made by respondents to this court for a writ of prohibition to restrain the said superior court and the said judge thereof from entertaining the said motion for a new trial. The application was denied. After the order for a new trial was granted another application for prohibition was made by respondents to prevent the said superior court and the said judge thereof from proceeding with the trial of the case. This application was also denied.

As we have said, an appeal was later taken by respondents from the said order granting the new trial and the pending motion to dismiss the appeal was then interposed.

The motion to dismiss the appeal is made on the following grounds:

“1. That said order granting a new trial is not an appeal-able order. 2. That said order granting a new trial is not an appealable order for the reason that the judgment rendered and entered, and which was vacated by said order granting a new trial, was not, in fact, entered after the cause had been tried before a jury but was entered by the court without any hearing or trial before a jury. 3. The only instance in which an order granting a new trial is appealable is the instance specified in Section 963, C. C. P. where the cause has been tried before a jury and judgment entered in favor of a party upon the verdict in his favor which judgment and verdict has been set aside upon the application of the adverse or losing party. 4. That the proper construction to be given to said code section is, that it applies only (a) To those instances in which the verdict in favor of a party has been set aside at the - instance of an adverse party; and (b) Not to a case where the verdict having been rendered in favor of a party the judgment thereupon has been set aside and another judgment entered in favor of the losing party without the intervention of a jury, and without any trial before a jury prior to the entry of such latter judgment which was rendered by the court; and (c) The judgment set aside by the order granting a new trial, which order it is now sought to appeal from, cannot be based upon the verdict of the jury because it is directly contrary to the only verdict which had ever been rendered by the jury in this action.”

In support of said motion to dismiss, the affidavit of R. P. Henshall, one of the attorneys for the petitioner, was filed, stating that on April 22, 1924, the said superior court made and entered the following final judgment.:

“Order Setting Aside Special Verdicts and Findings and Denying Petition for Partial Distribution. It appearing to the court that on the 27th day of April, 1914, David Jennings Baird, a minor, by his guardian, Lydia M. Valencia, filed herein his amended petition for partial distribution of the above entitled estate . . . and that thereafter this amended petition came on for hearing before this court and a jury, and that on the 17th day of October, 1921, said jury returned its verdict in favor of said David Baird, a minor, on the special issues submitted by the Court to said jury . . . and the Court thereupon approved and accepted and adopted the said verdicts and made and caused to be entered its findings of fact and conclusions of law . . . that on the 19th day of December, 1921, this court made and entered its decree of distribution distributing to the said David Jennings Baird, a minor, all of the property of the estate of the above-named deceased . . . and it further appearing that an appeal was taken to the Supreme Court . . . judgment denying the said petition for partial distribution upon the ground that said David Jennings Baird, a minor, is "not the adopted son or heir of the said deceased . . . and . . . a remittiiw from said Supreme Court is on file ... in the words and figures following: ‘ ... It is ordered, adjudged and decreed by the Court that the Decree of Partial Distribution of the Superior Court ... be and the same is hereby reversed and the trial court is ordered and directed to set aside the special verdicts and findings and to enter judgment for appellants . . . ’ now, therefore, pursuant to said remittitur, and not otherwise, and without any trial or hearing, or evidence taken and against the protest, objection and exception of the aforesaid David Jennings Baird, a minor . . . special verdicts and findings . . . are hereby vacated, annulled and set aside and the said petition for partial distribution ... is hereby denied.”

The affidavit of R. P. Henshall avers that the motion for' a new trial came on duly and regularly for hearing before the said superior court; that affidavits and counter-affidavits upon the question of newly discovered evidence were offered and received in evidence; that the entire phonographic report of the previous trial together with all the exhibits introduced in evidence in the form of original testimony showing the exact proceedings at the trial, all of which had not been reduced in any form and did not appear in the bill of exceptions which was before the supreme court when the judgment was reversed; and that in accordance with the provisions of section 660 of the Code of Civil Procedure reference to the recollection of the judge was made and other evidence was received in support of petitioner’s motion for a new trial.

Petitioner, in making the motion to dismiss the appeal from the order granting the new trial, contends that subdivision 2 of section 963 of the Code of Civil Procedure, that an appeal may be taken “from an order granting a new trial or denying a motion for judgment notwithstanding the verdict, in an action or proceeding tried by a jury where such trial by jury is a matter of right,” means that there must have been an actual trial before a jury with a verdict upon which the judgment rests, and that in this case the judgment which was entered by the direction of the supreme-court and set aside by the order granting a new trial did not rest upon any verdict of a jury or upon any finding of the court, but was entered pursuant to the mandate or remittitur of the supreme court. It is, therefore, urged that as there was no jury trial, and as section 963 contemplates that it is only when there has been a verdict upon which the judgment rests that an order granting a new trial is appeal-able, the appeal from the order granting a new trial does not fall within the exception and must be dismissed. The contention that the order is not appealable is based upon the argument (1) that because the judgment recites the remittitur of the supreme court as its only basis—“pursuant to said remittitur and not otherwise”—that judgment was ordered, and because it recited that it was entered “without any trial or hearing or evidence taken and against the protest, objection and exception of the aforesaid David Jennings Baird,” there has been no trial; and (2) that the judgment does not rest upon any verdict of any jury at any time because the only verdicts rendered were vacated, annulled, and set aside by the terms of the judgment itself; and (3) that the mandate of the supreme court to enter judgment denying the petition for partial distribution is void because the verdicts and findings having been set aside there is nothing upon which to enter the judgment except the evidence; and that an appellate court has no constitutional authority to direct judgment upon the evidence.

The affidavit of Karl G. Partridge, attorney for respondents, was filed, setting forth the history of the proceedings in the above-entitled estate. It appears that on the trial when petitioner rested a motion for nonsuit was interposed and denied, and that at the close of the evidence the respondents moved the court for a directed verdict, which motion was denied, and that in reversing the order of partial distribution this court held that both motions should have been granted (193 Cal. 225 [223 Pac. 974]). It further appears from said affidavit that on March 7, 1924, petitioner filed his petition in the supreme court for an order modifying and striking out the last portion of said decision and for a rehearing of said cause; that on March 17, 1924, this court made and entered an order denying said petition for rehearing, and that on March 20, 1924, the remittitur of this court was filed in said superior court following its judgment of reversal, as aforesaid.

Respondents contend that the proceeding in which the new trial was granted has been tried by a jury; that a trial by jury was a matter of right, and that “what the Supreme Court in effect did by its judgment was to order the judgment' which should have been entered 'by the trial court on a directed verdict. Therefore, the effect of the order granting the new trial is to set aside the directed verdict and the judgment based thereon. Counsel insist that the judgment set aside was one which was not based on any verdict, but merely on a mandate of the Supreme Court, and without any hearing or trial, and much is made of the recitals in the judgment entered by the trial court to the effect that it is made pursuant to the remittitur and not otherwise. The position of counsel in this regard is, to say the least, inconsistent, for if there has been no trial or hearing, or evidence taken, as recited in the trial court’s judgment, it is difficult to understand on what theory a new trial could be granted.” After citing Hawke v. Hawke et al., 82 Hun, 439 [31 N. Y. Supp. 968], and Katz v. Schnaier et al., 87 Hun, 343 [34 N. Y. Supp. 315], and quoting therefrom, respondents contend that “applying the same reason to this case, it would seem that the proper construction to be placed on Section 963, C. C. P. is that what is meant by an action or proceeding tried by a jury is a trial by jury under the direction of the court subject to existing laws, one of which is that the trial court has the power in such a case as this to direct a verdict, and, although the verdict is rendered under the direction of the court, it is, nevertheless, a proceeding tried by a jury.”

The petitioner, on the other hand, argues that “it is per: fectly manifest from the statute that what is meant by a trial by jury is that instance in which a verdict having been rendered in favor of a party and judgment entered thereupon in his favor and the court below, at the instance of the other party, sets aside that judgment and verdict and grants a new trial, that the right of appeal exists in favor of the person in whose favor the verdict was rendered. This is so because the right to trial by jury is highly favored in law; and it is to protect a party who has obtained a verdict against losing the fruits of a jury’s decision that the right of appeal in that instance is granted him from the order setting aside the verdict and granting a new trial.” This language indicates that petitioner regards the “verdict” of a jury as the essential element of a trial by jury. As a matter of fact, the constitutional guarantee of a jury trial is° fully observed when the verdict of the jury in the case is rendered and recorded (Estate of Bainbridge, 169 Cal. 166 [146 Pac. 427]; see, also, Ingraham v. Weidler, 139 Cal. 588 [73 Pac. 415]), and, therefore, it cannot be maintained that when a verdict, as in this ease, is set aside by the mandate of the appellate court and a judgment ordered to be entered for the other party on the ground of the insufficiency of the evidence, there has been no trial 'by jury on the theory there is no verdict rendered and recorded upon which the judgment can rest. Petitioner’s affidavit shows that there ivas a trial by jury, that special verdicts were rendered and recorded and adopted by the court, that findings were made, and that upon such verdicts and findings judgment was entered granting the petition for partial distribution. If this is not an “action or proceeding tried by jury” then it does not occur to us what it could be. The circumstance that an appeal ivas taken from the judgment so entered and that the appellate court ordered the special verdicts and findings set aside and judgment to be entered denying the petition for partial distribution upon the ground that the evidence was not sufficient to show that petitioner was the adopted son or heir of the deceased does not reduce the proceeding to one in which there has been no trial by jury. We think it clear that the motion to dismiss the appeal must be denied. To give to the provision “tried by jury” in section 963 of the Code of Civil Procedure the interpretation contended for by petitioner would have the effect of giving a narrow and restricted meaning to the language of the section—“An appeal may be taken . . . from an order granting a new trial ... in an action or proceeding tried by jury where such trial by jury is a matter of right.” What is meant by section 963 of the Code of Civil Procedure is that there cannot be an appeal from an order granting a new trial unless there has been a trial by jury as distinguished from a trial by the court without a jury or in an equity proceeding. The language of the section is merely descriptive and does not mean that an appeal from an order granting a new trial where there has been a trial by jury as matter of right in which a verdict is rendered, findings made, and judgment entered in favor of the plaintiff followed by the setting aside of such verdict and findings, the reversal of the judgment, the entry by direction of the appellate court of a judgment in favor of the defendant and the granting of a new trial in favor of plaintiff as aforesaid is any the less an appeal based on the verdict of a jury. There would seem, therefore, to be merit in respondents’ point that such a new trial could not have 'been granted to petitioner herein on any theory save that there had been a trial by jury, for eoncededly such trial by jury was the basis of petitioner’s motion for a new trial. It seems to us clear that this appeal rests as much upon the verdicts of the jury as does petitioner’s motion for a new trial. The direction to the trial court in reversing the judgment to set aside the verdicts and findings and enter judgment for respondents, the compliance with said directions by the trial court, and the subsequent order granting a new trial all have a direct connection with and are related to the verdicts of the jury, for although the súecqgsive steps taken after the rendition of the verdicts represent in a sense independent proceedings, nevertheless, each of them depends upon and rests on such verdicts. Hence, if petitioner’s motion for a new trial is related to and rests upon the verdicts of the jury, we are unable to understand why the order granting such motion is not to be traced to the same source. It follows that if petitioner’s motion for a new trial rests upon a trial by j™y, there has been a trial by jury for every purpose connected with such proceeding. To hold otherwise would be to impute to the legislature an intention to deprive a litigant in the situation of respondents of the benefit of the reversal of a judgment on appeal. In reversing the judgment herein it .was held that an adoption was not proved and that judgment should have been rendered for respondents in the court below. In the face of this it is contended that the order granting a new trial may not be reviewed, but that respondents must bear the burden and expense of another trial notwithstanding it may ultimately be determined there was no basis for a new trial. Such a construction is opposed to the general purpose of section 963- of the Code of Civil Procedure, in allowing appeals from orders granting a new trial, and petitioner has failed to show that the appeal in this case comes within any exception to the general language of the section.

Petitioner contends that even in a case where the verdict was directed by the trial court no appeal could be taken from an order granting a new trial, citing Estate of Sharon, 179 Cal. 447 [177 Pac. 283], to the effect that a verdict directed by the court is “really and in law the act of the court.” This authority was cited for the first time on the oral argument herein, and upon the direction of the court, supplemental memoranda of points and authorities were filed by both parties. Respondents point out that the above ease was one in which the court directed the jury to render a verdict for defendants and a part of the jury refusing to obey the order, the court ordered the jurors who complied with the direction to return the verdict, which was accordingly done. The decision holds that a directed verdict, is a decision upon the merits and is a bar to another action for the same cause, thereby distinguishing it from a judgment of nonsuit. We have found no authorities in this jurisdiction concerning the construction of the words in section 963 of the Code of Civil Procedure, “action or proceeding tried by jury.” However, in the case of Hawke v. Hawke et al., 82 Hun, 439 [31 N. Y. Supp. 968], in which a similar statutory provision was construed by the supreme court of that state and affirmed in a memorandum decision by the court of appeals (146 N. Y. 366 [41 N. E. 89]), it was held that “Code Proc., See. 2653a, providing that an action to determine the validity of a will shall be tried by a jury, and the verdict thereon shall be conclusive . . . unless a new trial be granted, or the judgment thereon be reversed or vacated, ’ does not deprive the court of power to direct a verdict as in other actions.” The following language was used: “The verdict that is to be found by the jury is to 'be arrived at pursuant to existing laws, and in arriving at their decision the jurors must be governed by the law of the land; and what that law is must be determined for them by the court. It cannot be presumed that the legislature intended anything but a trial by jury according to existing laws governing trials by jury in common-law actions. The provision in the statute that the verdict shall be conclusive is the same as is found in section 970 of the Code of Civil Procedure, and is in fact but a statutory enactment of what has long been the law relating to all trials by jury at common law. The use of these words in the statute, it seems to me, was intended, not to exclude the court from any of the powers and functions that it exercises in the trial of jury cases, but rather to emphasize the fact that these actions are to be tried by a jury, and to draw the distinction between cases of this kind and cases in equity that are tried by a jury, where the findings of the jury are simply advisory to the court, to be followed or disregarded as to the court seems best, and which are conclusive upon no one.”

It follows from what we have said that there is no merit in petitioner’s contention that even in a case where the verdict is directed 'by the trial court no appeal can be taken from an order granting a new trial.

Petitioner makes the further claim that this court was without authority to direct the superior court to set aside the special verdicts and findings and to enter judgment for respondents. In the Estate of Baird, 193 Cal. 225 [223 Pac. 974], it has been shown that there was a motion for nonsuit and a motion for a directed verdict which were respectively denied and judgment entered in the superior court against respondents. As already indicated, the affidavits on file here show that in the petition for rehearing application was made for an order modifying and striking out the portion of the judgment of reversal directing the entry of judgment for respondents in the court below, which petition was denied. The claim was made in the petition and is again made here that section 629 of the Code of Civil Procedure is unconstitutional and void, and, consequently, that the direction of this court to the court below to enter judgment for respondents' is void. We think the question, at least as far as the present proceeding is concerned, is concluded by the denial of the application for rehearing.

Since this is an appeal “from an order granting a new trial ... in an action or proceeding tried by a jury”— within the meaning of section 963 of the Code of Civil Procedure—petitioner’s motion is without merit.

Motion to dismiss the appeal denied.

Richards, J., Lennon, J., Waste, J., Seawell, J., Shenk, J., and Myers, C. J., concurred.  