The opinion
CARTER, J.
I dissent.
It is apparent to me that the order was void on its face. There is no question that it was made in response to a motion for a new trial. The motion therefor was made and the order reads: “Motion for new trial denied. Judgment reduced to $1,250.” In order to be valid, it must be either a conditional order, that is, unless consent is given to the reduction, the *376 new trial is granted, or it must show that consent was given prior to the order of reduction.
That it is necessary that the order, if it qualifies as a conditional one, must specify the condition is apparent from all of the cases which deal with the power of the court to make such orders. (See 20 Cal.Jur. 207 et seq.) This necessarily follows from the rule that such a conditional order operates automatically as an absolute grant or denial of the new trial. As said in Chapman v. Municipal Court, 91 Cal.App.2d 689, 691 [ 205 P.2d 712 ]: “The order of August 2d is a conditional or alternative order, which amounted to a granting of a new trial in the event the defendants (petitioners here) should not consent by August 5th to a judgment against them in the sum of $250; and upon failure of the defendants to so consent, the order became final. August 5th was within the 60-day period. It is well settled in California, as well as in other jurisdictions, that when, in ruling upon a motion for a new trial, the court grants or refuses a new trial upon a condition, the compliance or noncompldance with the condition within the time fixed by the order operates as an absolute grant or denial of the new trial, and the status and rights of the parties become finally fixed and determined as of that time. (Brown v. Cline, 109 Cal. 156 [ 41 P. 862 ]; Holtum v. Grief, 144 Cal. 521 [ 78 P. 11 ]; Taber v. Bailey, 22 Cal.App. 617 [ 135 P. 975 ]; Gloria v. A Colonia Portuguesa, 128 Cal.App. 640, 642 [ 18 P.2d 87 ]; Jennings v. Superior Court, 134 Cal.App. 300, 305 [ 25 P.2d 246 ]; Sherman v. Mitchell, 46 Cal. 576, 578 ; Garoutte v. Haley, 104 Cal. 497 [ 38 P. 194 ].) ” Obviously, there could not be an automatic denial or granting of the motion unless the order expressed the condition or result. It has been squarely recognized that the condition is an indispensable part of a conditional order. If it is indispensable, its absence renders the order void on its face. In Holtum v. Grief, 144 Cal. 521, 524 [ 78 P. 11 ], the issue involved was whether a second order eliminating the conditional order was valid. In holding that it was, the court gave as the reason: “The power of the court to make an order for a new trial conditional upon payment of costs by the moving party is unquestioned, and a failure to perform the condition converts the order into a denial of the motion. (Garoutte v. Haley, 104 Cal. 497 [ 38 P. 194 ]; Brown v. Cline, 109 Cal. 156 [ 41 P. 862 ].) The condition is therefore an essential part of the order, and the right to revoke it ceases when the power of the court over the order ceases. When the power of the court to set aside the *377 order as to the award of a new trial is at an end, its power to eliminate one of the substantial terms of the order must, for the same reason, he held to have ended.” [Emphasis added.] It is clear, therefore, that the order here cannot qualify as a conditional order.
On the other hand, when we have an order that is not conditional, that is, nothing more than a bald reduction of the judgment, it is conceded that such requires the consent of the parties; otherwise it is void. In Bentley v. Hurlburt, 153 Cal. 796, 803 [ 96 P. 890 ], the order denying a new trial and reducing the judgment stated that there was consent and on appeal the court stresses that point. It said: “In the order denying appellant’s motion for a new trial it is recited that the judgment is excessive in the sum of $460.95, and that Bentley has filed a written waiver of said amount. The denial of the motion follows these recitals. This, it is claimed, did not obviate the error in the original judgment. It has, however, long been settled in this state that on a motion for a new trial the court may, if the judgment be excessive, make a conditional order denying the motion if the prevailing party will consent to remit the excess and granting it in the absence of such consent. (Benedict v. Cozzens, 4 Cal. 381 ; Chapin v. Bourne, 8 Cal. 294 ; Gillespie v. Jones, 47 Cal. 259 ; Clanton v. Coward, 67 Cal. 373 [ 7 P. 787 ]; Thomas v. Gates, 126 Cal. 1 [ 58 P. 315 ].) If, upon such conditional order being made, the consent to the reduction be filed, the usual practice has been to enter an absolute order denying the motion. That is, in effect, what happened in the present case. The fact that the plaintiff’s consent to remit preceded the making of any order on the motion for new trial made it unnecessary for the court to make an order conditional in form, giving the plaintiff a certain time within which to file his consent to the reduction. The consent having already been filed, the court could properly act upon such consent and deny the motion at once. ’ ’ [Emphasis added.] Manifestly in making the instant order the court was not acting upon any consent, express or implied. The policy of the law, that where the validity of any order depends upon consent thereto having been given such consent must appear, is clearly expressed in the analogous situation of a judgment by confession: “. . . the statement [authorizing entry of judgment] must be filed with the clerk of the court in which the judgment is to be entered, who must indorse upon it, and enter a judgment of such court for the amount confessed, *378 with, ten dollars costs. The statement and affidavit, with the judgment indorsed, thereupon becomes the judgment roll.” (Code Civ. Proc., § 1134.)
The order and proceedings leading up to it show on their face that the order was void and hence there is no room for the presumption adverted to in the majority opinion. It was alleged in the petition and admitted by the answer that the motion for a new trial was made, it was submitted and thereafter the court made the order. This chain of events excludes any consent to reduction. The order is similar to the one in Johnson v. Southern Pac. Co., 150 Cal. 535 [ 89 P. 348 , 11 Ann.Cas. 841], where it was recited that a guardian was appointed on the application of the proposed guardian. It was held that such a recitation showed that the ward had not applied for appointment as required by statute, and hence the order was void on its face.
Finally, there was never any question between the parties concerning whether consent was given to the reduction of the judgment. Respondent makes no such contention and by its silence it may be deemed to have been conceded. In any event, petitioner should be given the opportunity to amend his petition to allege lack of consent. Whether or not it was given should not be a debatable matter. From all that appears, it is doubtful that respondent would deny that it was not given. To brush aside a factual matter readily determinable by such means is not consonant with enlightened justice.
I would therefore grant the peremptory writ of mandate prayed for by petitioner.