The opinion
CARTER, J.
I dissent.
The majority opinion is based on the following reasoning: The order vacating the judgment, entered pursuant to the motion made under section 473 of the Code of Civil Procedure, which contained a provision fixing the time for determining the value of the property, could not be vacated or modified —that is, the court lacked jurisdiction to do so. Therefore, the order striking out such provision was void. Being void, the trial court had no jurisdiction to proceed with the trial of the case in reliance upon said void order. Hence prohibition,—a jurisdictional writ, was proper; that the court had no jurisdiction other, than to follow the provision fixing time for determining value in the vacating order. That reasoning is squarely contrary to Phelan v. Superior Court, 35 Cal.2d 363 [ 217 P.2d 951 ], where the trial court in its order denying a motion for a new trial ordered the judgment reduced in amount. This is similar to the provision fixing time for determining value in the vacating order in the instant case. This court after stating in the Phelan case that mandamus is not available until a request is made to the trial court to correct its error, said: “In the present case petitioner could have made a motion under section 473 of the Code of Civil Procedure to vacate the portion of the order claimed to he invalid. Instead of making such motion petitioner waited until after the time for appeal had passed and then filed this application for writ of mandate, without ever having presented the matter to the trial court. There is no showing that the question was raised in any manner before the trial court or that it would have been futile to do so. ’ ’ (Emphasis added.) (Phelan v. Superior Court, 35 Cal.2d 363, 372 [ 217 P.2d 951 ].) If the claimed invalid part of the order could there be eliminated by the trial court, it had jurisdiction to do so.. There, as here, the trial court had jurisdiction under section 473 to consider the question of whether the provision fi-ying the time for determining value—the claimed invalid *489 portion of the vacating order, should be eliminated. Having jurisdiction, its order striking out such invalid provision was not void, and constituted nothing more than error made in the exercise of its jurisdiction.
It has been repeatedly held that a trial court has jurisdiction to vacate or modify a previous order made by it, even though the prior order is final and appealable. (Harth v. Ten Eyck, 16 Cal.2d 829 [ 108 P.2d 675 ]; De la Beckwith v. Superior Court, 146 Cal. 496 [ 80 P. 717 ]; Imperial Beverage Co. v. Superior Court, 24 Cal.2d 627 [ 150 P.2d 881 ]; Key System Transit Lines v. Superior Court, ante, p. 184 [ 222 P.2d 867 ]; People v. Eggers, 30 Cal.2d 676 [ 185 P.2d 1 ].) For illustration it is said in the Imperial Beverage Co. case (p. 634): “It is further contended that the order denying the first motion for a stay is res judicata as to the subsequent motion. While the plea of res judicata may be a good defense to an action in which it is interposed, it does not deprive the court of jurisdiction over the action nor does it deprive the court of jurisdiction to pass upon and decide a motion after it has previously decided a like motion. Its action upon the second motion may be erroneous, but it is not in excess of jurisdiction. (Harth v. Ten Eyck, 16 Cal.2d 829, 832 [ 108 P.2d 675 ].) ” If a court can hear and determine a motion where the identical motion was previously made and denied by a final order, it certainly has jurisdiction to hear and determine a motion to modify the first order. In the Key System case, supra, a motion to dismiss an action for failure to prosecute was granted. Thereafter, on plaintiff’s motion, an order was made vacating the order of dismissal. The same grounds existed in each case before the first motion. In denying prohibition, which was sought to prevent the court from proceeding with the trial, because the court lacked jurisdiction to make the second order, two members of this court said (p. 186) : “The arguments of the petitioner invoke application of the policy requiring finality of judgments and orders. That policy generally controls where a judgment or order is entered after a trial on the merits of the litigation. . . . But the policy has not been deemed controlling where the judgment or order set aside was in the exercise of a discretionary power not based on the merits of the action. . . . In giving effect to that policy appellate courts have generally refrained from interfering on jurisdictional grounds with the trial court’s reconsideration of a discretionary order not based *490 on the merits of the litigation. (See, Kenney v. Kelleher, 63 Cal. 442 ; De la Beckwith v. Superior Court, 146 Cal. 496 [ 80 P. 717 ]; Glougie v. Superior Court, 169 Cal. 675 [ 147 P. 927 ]; Harth v. Ten Eyck, 16 Cal.2d 829 [ 108 P.2d 675 ]; McDonald v. Severy, 6 Cal.2d 629, 631 [ 59 P.2d 98 ]; Watkins v. McCartney, 70 Cal.App. 137 [ 232 P. 982 ].) ” (Emphasis added.) The court said in People v. Eggers, supra, 692: “Section 1026 of the Penal Code authorizes a separate trial upon the issue of insanity and specifically authorizes the court, in its discretion, to retain or dismiss the jury which tried the first action. The direction to retain the first jury is denominated an order (Code Civ. Proc., § 1003) and every court has power to amend and control its orders so as to make them conformable to law and justice. (Code Civ. Proc., § 128, subd. 8.) Unquestionably, the trial court was invested with jurisdiction to make an order retaining the jury, and it must be conceded that it has jurisdiction to modify, revoke, or set its orders aside. (Imperial Beverage Co. v. Superior Court, 24 Cal.2d 627 [ 150 P.2d 881 ]; Harth v. Ten Eyck, 16 Cal.2d 829 [ 108 P.2d 675 ]; De la Beckwith v. Superior Court, 146 Cal. 496 [ 80 P. 717 ]; Burbank v. Continental Life Ins. Co., 2 Cal.App. 2d 664 [ 38 P.2d 451 ]; Struck v. Superior Court, 138 Cal.App. 672 [ 32 P.2d 1110 ]; City of Los Angeles v. Oliver, 102 Cal. App. 299 [ 283 P. 298 ].) The rule stated in De la Beckwith v. Superior Court, supra (p. 499), is as follows: ‘It is a most common occurrence for a trial court to change its rulings during the progress of a trial, upon questions of law, and no one would contend that it is not within its power to do so, or that it should not do so when satisfied that the former ruling was erroneous.’ ” (Emphasis added.) It is true there are some cases to the contrary (see Phillips v. Truesheim, 25 Cal.2d 913 [ 156 P.2d 25 ]) but there are more in accord with the view of the cases cited above.
Furthermore, it should be pointed out that the motion to strike the provision fixing time for determining value in the vacating order was based on the ground that it was erroneous and was 'beyond the power of the court to make. The order granting the motion mentions no ground. It must be presumed, therefore, that it was made under section 473 of the Code of Civil Procedure, on the ground that it was void on its face. (See concurring opinion of Gibson, C. J., and Schauer, J. in Key System Transit Lines v. Superior Court, supra-, Phelan v. Superior Court, supra.) If the provision fixing time for determining value in the vacating order was *491 not void the result is not different for the court had statutory jurisdiction (Code Civ. Proc., §473) to determine whether it was void.
In reality the provision fixing time for determining value in the vacating order was nothing more than a procedural step in the process of the trial of the eminent domain proceeding. By it the court merely made an order by which the law for the trial was stated. If it had made a ruling at the opening of the trial that the value of the property would be determined as of a certain date, prohibition would not lie to prevent the court from proceeding with the trial. If, when evidence was offered as to the value of the property at a particular time, and objection was made, the ruling on that objection, right or wrong, would not have authorized prohibition to prevent the court from proceeding further with the trial. It is said in Johnston v. Superior Court, 4 Cal.App. 90, 93 [ 87 P. 211 ] : “The court having jurisdiction to make the rulings, the fact that it may have ruled erroneously does not oust it of jurisdiction. Such errors can be reviewed at the same time and in the same manner as ordinary errors in ordinary cases, and the fact that petitioner elected to base her objections on jurisdictional grounds cannot change the well-settled rule regulating the review and correction of errors of law occurring during the course of a trial. The writ of prohibition will not be issued except in eases of extreme necessity, and it certainly cannot be used for the purpose of regulating the issues in a pending cause and confining them to a particular scope, or to test the correctness of rulings on motions to strike out the whole or any part of a pleading filed in a cause over which the court has complete and unquestioned jurisdiction. To tolerate such a practice would be subversive of the purpose of the writ which is to restrain inferior tribunals and bodies from inflicting wrong under the guise of jurisdiction or authority which has no potential existence. It would invite intolerable delay and annoyance in every case where a jurisdictional question might perchance be incidentally involved, and make this prerogative writ the medium through which appellate courts could exercise supervisory control over inferior tribunals acting within the scope of their legitimate powers.”
The Superior Court of San Diego County unquestionably has jurisdiction over the parties and the subject matter of the action here involved. Having such jurisdiction, it has *492 power and authority to proceed and dispose of the case—hear and determine the issues—even though it may do so erroneously. If the holding in the majority opinion is sound— that the court is without jurisdiction to proceed with the trial of this case because it struck out the provision in the order vacating the judgment fixing the time for determining the value of the property, then, if this writ had not been sought, and the case had proceeded to judgment, the judgment would be void and subject to collateral attack. There can be no escape from this conclusion, because, if there is any settled law in this country, it is, that in order for a court to render a valid judgment, it must have jurisdiction to hear and determine the-cause. (7 Cal.Jur. 594; 8 Cal.Jur. 858; 15 Cal,Jur. 52; 31 Am.Jur., Judgments, §406.) The majority say, in effect, that the court has no jurisdiction to permit the parties to introduce evidence as to the value of the property at any time other than the date on which summons was issued. Would the majority have held the same way if the provision fixing time for determining value had not been stricken from the order vacating the judgment, but the trial judge had disregarded such provision and allowed evidence of value as of the date of the trial without so advising counsel prior to the trial? Would the majority grant a writ of prohibition and interrupt the trial or hold the judgment void and subject to collateral attack if no such writ were sought during the trial but certiorari was sought after the time for appeal had expired? If these questions are answered in the affirmative, the majority will usher in a new era in the use of prerogative writs heretofore unheard of or even imagined, and the arduous labors of the Chief Justice in attempting to clarify the law on this subject will be dissipated and come to naught. (See Phelan v. Superior Court, 35 Cal.2d 363 [ 217 P.2d 951 ]; Robinson v. Superior Court, 35 Cal.2d 379 [ 218 P.2d 10 ]; Tomales Bay etc. Corp. v. Superior Court, 35 Cal.2d 389 [ 217 P.2d 968 ].)
I would deny the writ of prohibition sought in this case.
Schauer, J., concurred.
Respondent’s and Real Parties’ in Interest petition for a rehearing was denied January 11, 1951. Carter, J., and Schauer, J., voted for a rehearing.