Firemans Fund Ins. v. McColm
Plaintiff and appellant Firemans Fund Insurance Companies had a judgment of dismissal entered against it after the trial court granted respondent George C. McColms motion to dismiss for failure to bring the action to trial within five years, pursuant to Code of Civil Procedure section 583.360.[1]Appellant filed a notice of appeal against the judgment of dismissal in May 2005, and this court dismissed the appeal in December 2005 for failure to procure the record pursuant to former California Rules of Court, rule 8(b) (currently rule 8.140). While this appeal of the judgment of dismissal was pending, the trial court set aside the judgment of dismissal pursuant to appellants motion under section 473, subdivision (b). Respondent then filed a motion to vacate that order. After a hearing on the matter, the trial court granted respondents motion to vacate its prior order setting aside the judgment of dismissal. However, the trial court did not rule on, or notice further hearing on, appellants section 473 motion. Firemans Fund now appeals the order reinstating the judgment. As explained more fully below, Court affirm the judgment on a ground different from that relied on by the trial court, namely, the trial court was without jurisdiction to hear appellants section 473 motion while the first appeal was pending. ( 916).
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