Tripcevich v. Compton

PULLEN, P. J.

Respondents herein are the husband and grandchildren of Angie Nicovich, who brought this action to recover damages for her death. The death was caused, as alleged in the complaint, by the negligent operation of an automobile owned by Evelyn Compton, and being then driven by Fred E. Compton. Upon the trial a jury returned a verdict in favor of plaintiffs for $600. Deeming the award inadequate, plaintiffs filed the following notice of intention to move for a new trial:

“You and each of you will please hereby take notice that plaintiffs above named intend to and will move the above entitled court to vacate and set aside the verdict heretofore rendered in this action and the judgment entered thereon and to grant said plaintiffs a new trial herein on the sole issue of damages, on the following grounds. ... ”, specifying among others, that of insufficiency of the evidence to sustain or justify the verdict.

Thereafter the court made the following order:

“Good cause appearing therefor it is hereby ordered that plaintiffs’ motion for a new trial in the above entitled action be and the same is hereby granted upon the ground of insufficiency of the evidence to justify or sustain the verdict.”

In due time defendants moved for relief under section 473 of the Code of Civil Procedure upon the ground the order was inadvertently made. This motion was denied, and from the order vacating and setting aside the verdict, and judgment, and from the order granting a new trial this appeal is taken.

It is the contention of appellants that the order granting the new trial is inadequate and uncertain in that it purports to set aside the verdict and the judgment in their entirety, and then attempts to grant a retrial as to the issue of damages only.

[190]

With this limited construction of the orders we cannot agree. The notice of intention, which under section 659 of the Code of Civil Procedure is also deemed to be the motion, clearly requests a new trial upon the sole issue of damages, and in construing the order we must do so within the limits set up in the motion; therefore construing the two together, the intention of the court and counsel for respondents is plain.