EDMONDS, J., Dissenting By the decision of a majority of this court, the appellant is deprived of a remedy peculiarly within the province of the trial judge to grant, which it had sought with1 due diligence in proper form and which the trial judge had decided should be given. In arriving at this conclusion, the majority opinion emphasizes but one of the two dates which start the running of the 60-day jurisdictional period within which the trial court is empowered to grant a motion for a new trial. The filing of the notice of intention to move therefor also starts the running of that period, and in the present case, as in Kahn v. Smith, post, p. 12 [142 P.2d 13], the defendants filed such notice well within ten days from the service of the defective notice of entry of judgment. (See Code Civ. Proc., see. 659.) Certainly where each of the litigants serves and files a notice which limits the authority of the court to act, the court should hold that, as between the two, one incorrect in form is ineffective and the other authorizes judicial action which would be proper except for the conflict between it and the defective notice. Furthermore, the decision of the majority fails to apply well-accepted rules governing the scope of collateral attack upon appeal^ able orders. (See discussion in my dissent in Kahn v. Smith, post, p. 12 [142 P.2d 13].)
The limitations upon the power of the trial court to pass upon a motion for a new trial must be considered in connection with the purpose and policy of that procedure. Although [9]it is primarily designed to secure a re-examination of the issues of fact, the motion also serves to bring to the notice of the court errors which may have been committed in the course of the trial (see grounds for new trial, Code Civ. Proc., sec. 657) and provides an opportunity for the correction of such errors without subjecting the parties to the expense and inconvenience of an appeal (Spier v. Lang, 4 Cal.2d 711, 714 [53 P.2d 138].; and see cases cited in 39 Am.Jur., New Trial, see. 17, pp. 42, 43). In establishing this procedure, the Legislature has recognized that the interests of justice may require an independent reweighing of the evidence by the trial judge after rendition of the verdict by the jury, and this court has, upon occasions, criticized the reluctance of trial judges generally to exercise their power of granting a motion for a new trial for insufficiency of the evidence and their inclination to acquiesce in a verdict which does not constitute the just conclusion to be drawn from the evidence. (Green v. Soule, 145 Cal. 96, 102 [78 P. 337].) In case after case it has been emphasized that the trial judge, unlike an appellate court, has had the same opportunity as the jury to observe the manner of the witnesses and to pass upon their credibility; as a consequence he cannot rely upon a conflict in the evidence to uphold the verdict but must exercise his duty to see that it is not clearly against the weight of the evidence. (Rosenberg v. Geo. A. Moore & Co., 194 Cal. 392, 396 [229 P. 34]; Greene v. Soule, supra, at pp. 102,103; Bates v. Howard, 105 Cal. 173, 178 [38 P. 715] ; Dickey v. Davis, 39 Cal. 565, 569; Gardner v. Marshall, 56 Cal.App.2d 62, 66 [132 P.2d 833]; Lasch v. Edgar, 46 Cal.App.2d 726, 730 [116 P.2d 949]; Owings v. Gatchell, 32 Cal.App.2d 482, 487, 488 [90 P.2d 268]; and see Tweedale v. Barnett, 172 Cal. 271, 274, 275 [156 P. 483]; Empire Investment Co. v. Mart, 169 Cal. 732, 736 [147 P. 960] ; Gordon v. Roberts, 162 Cal. 506, 508, 509 [123 P. 288] ; Keogh v. Moulding, 52 Cal.App.2d 17, 19 [125 P.2d 858].) For he is in a position to determine between the apparent and the real, and to detect the fallacy of specious testimony which may have misled the jury, but which his wider experience enables him to comprehend. (Bates v. Howard, supra, at p. 178.) The parties are entitled to the verdict of the jury in the first instance, but upon a motion for a new trial they are entitled to the independent determination of the judge as to whether such verdict is supported by the evidence. (Green v. Soule, supra.)
[10]Undoubtedly these broad purposes have led the appellate courts liberally to construe the limitations upon the exercise of this power. Thus this court has held that so long as the court “passes” upon the motion within the 60-day period, it has lawfully exercised its jurisdiction to determine the motion, and the signing and filing of the formal order or findings subsequent to the last day of that period do not affect the validity of its act. (Spier v. Lang, supra,, at p. 715; Holland v. Superior Court, 121 Cal.App. 523, 531 [9 P.2d 531].) And although section 661 of the Code of Civil Procedure states that the motion, if heard by a judge other than the one who presided at the trial, “shall be argued orally or shall be submitted without oral argument . . . not later than ten (10) days before the expiration of the time within which the court has power to pass on the same, ’ ’ the court has construed the requirement as directory and not jurisdictional and upon that theory affirmed an order granting a motion for a new trial although the motion was submitted for decision but three days before the expiration of the 60-day period. (Pappadatos v. Superior Court, 209 Cal. 334 [287 P. 342].)
Under section 660 of the Code of Civil Procedure either of two dates may start the running of the 60-day jurisdictional period within which the trial court has the power to pass upon a motion for a new trial. The party in whose favor the judgment was rendered may fix the time by serving upon his adversary written notice of the entry of judgment. On the other hand, if such notice has not theretofore been served, the jurisdictional period commences upon the filing of the notice of intention to move for a new trial. The statute also provides that if the motion is not determined within the specified time, “the effect shall be a denial of the motion without further order of the court.”
But in the present action, as in Kahn v. Smith, post, p. 12 [142 P.2d 13], and in Lauritzen v. H. L. Judell & Co., 109 Cal.App. 168 [292 P. 536], the court granted the motion for a new trial within sixty days from the filing of the notice of intention to move therefor, hence it was acting within its jurisdiction if the notice of entry of judgment was ineffective. Three facts are particularly relevant in considering the rights of the parties under these circumstances. In the first place, the delay in passing upon the motion for a new trial is in no way attributable to the appellant, who acted promptly, filing its notice of intention on the seventh day following the [11]entry of judgment. Secondly, the action of the trial judge in granting the motion shows that he intended to determine it by a ruling and not to have it denied by the lapse of time specified in the statute. And, finally, the respondent did not challenge the merits of the ruling by an appeal from the order. Giving effect to the purpose of the motion and the desirability of promoting the prompt administration of justice by allowing trial judges to set aside determinations not justified by the weight of the evidence and to correct errors which would otherwise be the basis of expensive and time-consuming appeals, any departure from strict regularity in the notice of entry of judgment should render it ineffective as a limitation upon the exercise of this power. Contrary to the respondent’s assertion, the cases of Lauritzen v. H. L. Judell & Co., supra, and Weeks v. Coe, 36 App.Div. 339 [55 N.Y.S. 263], were not decided upon the ground that the error in the notice misled the opposing party to his detriment, but upon the doctrine just stated.
Applying this rule of construction to the facts of the present case, the notice of entry of judgment set forth an erroneous date of entry. As a consequence the notice did not limit the power of the court to pass upon the motion for a new trial and, as the court granted the motion within sixty days from the filing of the appellant’s notice of intention to move for a new trial, it was acting within the jurisdictional period. And it may not be said that Abbot-Kinney Company by appealing from the judgment has waived its right to question the sufficiency of the notice, particularly since it has consistently urged in its briefs that the order granting the new trial is valid and that the appeal is taken only to safeguard its rights.
Nor is the appellant now precluded from asserting that the service of the notice of entry of judgment did not fix the jurisdictional period for a ruling on a motion for new trial by failing to appeal from the order denying its motion to strike the notice of entry of judgment. For, assuming that such an order is appealable, the denial was not necessarily a ruling determining the effect of the notice. The court may have agreed with the argument of counsel that the defect prevented the service of the notice from limiting the power of the court to pass upon the motion for new trial, but, in the exercise of its discretion, decided that the notice showing the error should remain a part of the record upon which it acted in ruling upon the motion for a new trial. Also, if the error [12]rendered the notice ineffective no real object would be served, by striking it from the files. Furthermore, the fact that the notice might be ineffective for one purpose would not necessarily mean that it is ineffective for other purposes.
In relying upon the cases of Waddingham v. Tubbs, 95 Cal. 249 [30 P. 527], and Santa Ana etc. Co. v. Ernest Rurup Estate, 23 Cal.App.2d 445 [73 P.2d 908], the majority opinion fails to recognize the rule that a stronger showing is required to justify interference with an order granting a new trial than with one which has been denied. (See Abercrombie v. Thomsen, 59 Cal.App.2d 331, 337 [138 P.2d 701].) Thus Waddingham v. Tubbs, supra, is clearly distinguishable from the present action, for there the court not only denied the motion for a new trial but also held that there was no error in the facts stated in the notice of entry of judgment. And in Santa Ana etc. Co. v. Ernest Rurup Estate, supra, another case' where the motion for new trial was denied, the notice of entry of judgment was in the customary form and correctly contained all of the necessary data.
For these reasons, I believe, as no appeal was taken from the order granting a new trial, the judgment was vacated and the appeal should be dismissed.
Shenk, J., and Curtis, J., concurred.