Kraft v. Lampton

WOOD, J.

Petitioner seeks by a writ of mandate to compel the county clerk of Los Angeles County to issue a writ of execution in an action in which he obtained judgment against Daniel W. Briggs. Following a jury’s verdict judgment for $5,000 was entered on December 19, 1935, in favor of petitioner. Written notice of the entry of the judgment was served on Briggs on December 21, 1935. A motion for new trial came on for argument on January 22, 1936, and it

[597]

was stipulated that the matter be submitted on briefs. Judge Stanley Murray of Madera County was the trial judge. Upon his return to Madera County the briefs were forwarded to him.

Respondent county clerk received and filed on February 24, 1936, a letter from Judge Murray written in Madera and dated February 21, 1936, stating in part: “Referring to Motion for New Trial (Action No. 390171) in the case of

Klyde Kraft, plaintiff,

v.

Daniel W. Briggs, et al., defendants,

please be advised that said motion is hereby granted upon the grounds of the insufficiency of the evidence to sustain the verdict. Please make proper minute entry and notify respective parties in accordance herewith.” On April 7, 1936, the presiding judge of the Superior Court of Los Angeles County ordered the issuance of a writ of execution. Thereupon and under date of April 7, 1936, Judge Murray filed an order in part as follows: “WHEREAS, the opening and closing briefs of the defendant in support of said motion and the brief of the plaintiff in opposition-thereto were duly considered and good cause appeared therefor, the undersigned did upon the 14th day of February, 1936, grant said motion of the defendant upon the grounds of the insufficiency of the evidence to sustain the verdict, and WHEREAS, the undersigned by letter addressed to the Clerk of the above entitled court and dated February 21, 1936 did inform said Clerk of the granting of said motion upon said grounds but did not state therein the day upon which said order granting said motion was made. NOW THEREFORE IT IS HEREBY ORDERED that the Clerk of the above entitled court cause to be entered in the minutes, files and records of the above entitled case the order of the undersigned granting said motion upon the grounds of the insufficiency of the evidence to sustain the verdict as of the 14th day of February, 1936, the date upon which said order was made.” Thereupon the presiding judge made an order recalling the writ of execution which had theretofore been issued.