Whalen v. Smith , 163 Cal. 360 ( 1912 )

I dissent. The power of this court to reverse the whole of a judgment when a part only has been appealed from is conceded by the prevailing opinion to exist.

The judgment delivered by this court in Whalen v. Webster,159 Cal. 260, [113 P. 373], is in the following language: "The judgment is reversed." Language so plain and so free from ambiguity neither requires explanation nor permits construction. It either means what it says or it means nothing. It follows, therefore (the power of the court so to do being conceded), that this court deliberately reversed not a part but the whole of the judgment appealed from, for, as is said in Glassell v. Hansen,149 Cal. 511, [87 P. 200], where a similar question was presented: "In reversing the case this court might have directed what issues should again be tried, and what should be deemed finally settled by the first trial; however, it did not do so, and the judgment was merely in the general terms `the judgment and order are reversed.' This clearly left the whole case to be tried anew, as if it had not been tried before. (Falkner v. Hendy, 107 Cal. 54, [40 P. 21].)" In Cowdery v. London etc. Bank, 139 Cal. 298, [96 Am. St. Rep. 115, 73 P. 196], this court, in effect, refused to put any construction upon a judgment such as the one here under consideration or to attempt to modify its plain meaning in any way. The judgment of this court in the Cowdery case was: "The judgment . . . is reversed and the cause remanded, with directions that the trial court enter judgment in accordance with the views here expressed." Says this court: "The legal effect of the order of the supreme court was to reverse and vacate the judgment, and not merely to modify it. Upon a decision of the supreme court that there was material error in the action of the court below, that court may direct the character of the subsequent proceedings in the lower court, and its mandate will vary according to its views as to the proper course to be pursued. It may conclude not to reverse the judgment, but to modify it, by eliminating some portion, or by adding something to it, leaving the remaining part of the judgment below to stand affirmed and in full force and effect from the date of its original entry or rendition; or it may reverse the judgment, which means to entirely vacate it, and may remand the cause for a new trial; or if a new trial is not necessary, it may upon the reversal remand it, with directions to the lower court to enter a particular judgment."

What this court is here doing is changing in essential particulars a judgment which it has solemnly given, which judgment by lapse of time has passed from its control and become an absolute finality. It is doing this under the guise of construing language so plain as to forbid construction. The direct consequence, the legal effect of this is to impair without warrant of law the stability and security of every judgment which this court has rendered. If this court in one case can say that its formal decree reversing the whole of the judgment of a trial court means merely the reversal of some portion of that judgment, it may say so in any case.

The judgment which this court rendered in the 159th California was either mistaken or not mistaken. If it was not mistaken there is no need for its correction. If it was mistaken this is not a legal method for its correction. Nothing but hopeless confusion in the law can follow if its highest interpreters under conditions such as those here present shall be permitted to say that their own deliberately chosen language does not mean that which alone the words must mean to any comprehending mind. I, therefore, dissent under the conviction that the prevailing opinion and judgment are not alone without the sanction of the law, but are a dangerous innovation upon the law.

Melvin, J., concurred in this dissenting opinion.