Robbins v. Jenkins

WOOD, J.

Plaintiffs, husband and wife, commenced the action against defendant, a surgeon, alleging that he performed an operation upon one of the plaintiffs, that he made an incision into her abdominal cavity and in sewing up the wound

[581]

negligently failed to remove certain sutures, resulting in damages to plaintiffs. Upon issue joined, the jury brought in a verdict for defendant. A motion for new trial was made on various statutory grounds, including insufficiency of the evidence to justify the verdict. On February 25, 1935, the motion for new trial was granted, the essential part of the minute order being: “After argument, it is ordered that the said motion be and the same is hereby granted. ’ ’ Defendant appealed from this order and filed his opening brief in this court on July 5, 1935. On motion of plaintiffs for an order to correct the order granting a new trial, the trial court on July 16, 1935, made an order which appears in the minutes as follows: “After argument, it is ordered that said motion be and the same is hereby granted

nunc pro tunc

to show that said motion for a new trial was granted on the insufficiency of the facts to justify the verdict.” The trial judge on July 17, 1935, filed a written order setting forth, “it appearing to the court that by error of the clerk of department 17 of this court, the minute order of the 25th of February, 1935, failed to show that the motion was granted on the ground of insufficiency of evidence to justify the verdict”, and providing that the minute order theretofore made be corrected

nunc pro tunc

to show that “one of the grounds for granting said motion is insufficiency of evidence to justify the verdict”. From this order also defendant appeals.

Plaintiffs now present a motion to this court to dismiss the appeals and to affirm the orders of the superior court on the ground that the questions on which the decision of the cause depends are so unsubstantial as not to need further argument. Defendant resists the motion, contending that the trial court in its order of July 16, 1935, attempted to correct a judicial rather than a clerical error.