Laumann v. Conner

DORAN, J.

The two above-entitled cases were consolidated for trial in the superior court and the appeal herein attacks the validity of an order granting a motion for a new trial, which order culminated the following series of events: At the conclusion of the testimony for the plaintiffs, defendant made a motion for a nonsuit on the grounds: First, that neither of the complaints constituted a cause of action; and, second, that the evidence was insufficient to support a judgment for the plaintiffs, which motion was granted on the first ground and denied as to the second.

Plaintiffs filed a notice of appeal from such order, also, a notice and request for a transcript. Thereafter, on April 23, 1934, judgment was entered and plaintiffs likewise appealed from said judgment. On May 11, 1934, and before any notice was made, served or filed of the entry of said judgment, plaintiffs served and filed their notice of intention to move for a new trial, which notice specified several statutory grounds: namely, the grounds allowed by subdivisions 1, 3, 6 and 7 of section 657 of the Code of Civil Procedure, and, in particular, the ground that the phonographic notes taken at the trial by the court reporter had been lost and were not available to complete the record on appeal under section 953a of the Code of Civil Procedure. An affidavit by counsel supported the last-mentioned ground.

[633]

The pertinent part of the order granting the motion for a new trial is as follows: “After oral argument the following order is made: It appearing that the phonographic reporter through inadvertence has lost a substantial portion of the notes of the testimony taken at the trial of these actions plaintiffs’ motion for new trial is hereby granted in accordance with the provisions of section 953e of the Code of Civil Procedure.”

Respondents rely upon the authority of

Moore

v.

Specialty Oil Tool Co.,

128 Cal. App. 662 [18 Pac. (2d) 82], in support of the contention that the court had authority to grant the motion. This case declares that the court is vested with discretion in the matter of passing upon motions for new trial made pursuant to the provisions of section 953e of the Code of Civil Procedure, but does not by any means hold that this discretion extends beyond the limit of the provisions of the section.