Johnston v. City of San Fernando

California Court of Appeal Oct 23, 1939 No. Civ. 12271Published

Before: Wood

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Holding. The trial court lacked jurisdiction to grant a motion for a new trial because the plaintiff failed to serve the notice of intention upon the defendant employee, an adverse party whose interests were directly affected by the motion.

Issues

Whether the trial court had jurisdiction to grant a new trial without service of notice upon all adverse parties.
Whether an attorney for one defendant is authorized to accept service for another defendant absent specific authorization.

Disposition. reversed

Quotations verified verbatim against the opinion

“The superior court is without jurisdiction to reexamine an issue of fact that has been tried and change its decision thereon unless all of the parties to the issue have been properly brought before it by serving the required notice.”

“While a litigant has a duly employed attorney of record, that attorney retains the exclusive right to appear and control the proceedings at the trial.”

“Apparently counsel for plaintiff inadvertently omitted to serve counsel for defendant Ward with his notice of intention to move for, a new trial, but such inadvertence, if it may be so called, was fatal in that it left the court without jurisdiction”

WOOD, J. —

Plaintiff commenced this action to recover damages for injuries which he suffered when an automobile in which he was riding collided with an automobile driven by defendant Ward. At a jury trial it was stipulated that at the time of the collision defendant Ward was an employee of defendant City of San Fernando engaged in the performance of his duties as such employee. The jury returned a verdict in favor of defendants and thereafter the trial court granted a motion for a new trial “on the grounds of insufficiency of evidence to sustain the verdict”. Defendants appeal from the order granting a new trial.

It is the contention of defendants that notice of intention to move for a new trial was not served upon defendant Ward and consequently the trial court was without jurisdiction to grant the motion for a new trial. Separate answers were filed by the defendants, the answer of defendant Ward' being signed by attorneys Hill & Baumgarten and the answer of defendant city being signed by attorney C. A. Pinkham. At the trial attorney Baumgarten represented defendant Ward and defendant city was represented by attorney Elber H.

[246]

Tilson, of the staff of attorney Joe Crider, Jr. No substitution of attorneys on behalf of defendant city appears in the record before us but this is immaterial since no claim is made that the service on attorney Crider was ineffective as regards the service of notice upon defendant city. The record discloses that the only service of notice of intention to move for a new trial was made upon attorney Joe Crider, Jr., which service was made by mail.

It is made mandatory by section 659 of the Code of Civil Procedure that a party intending to move for a new trial shall serve upon the adverse party a notice of intention so to do. The term “adverse party” includes every party whose interest in the subject-matter of the motion will be affected by the granting of the motion. The superior court is without jurisdiction to reexamine an issue of fact that has been tried and change its decision thereon unless all of the parties to the issue have been properly brought before it by serving the required notice.

(Herriman

Menzies,

115 Cal. 16 [44 Pac. 660, 46 Pac. 730, 56 Am. St. Rep. 81, 35 L. R. A.

Johnston v. City of San Fernando

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