Hinrichs v. Maloney

GRIFFIN, P. J.

On December 17, 1957, the jury in this action for false arrest and imprisonment, returned a verdict for the plaintiff-appellant and against the defendant-respondent in the sum of $3,000. This verdict was filed and entered in the judgment book on December 18, 1957. The subsequent series of events in chronological order were these: The plaintiff filed a notice of entry of judgment and a copy was mailed to the attorneys for the defendant, at Fresno, on December 18,1957. Defendant filed notice of intention to move for a new trial on January 3, 1958. It was heard and denied by minute order on February 14, 1958. Apparently, without a motion, on March 7, 1958, an order was made and entered in the clerk’s minutes vacating the minute order of February 14, 1958, denying a new trial. It also granted defendant’s motion for a new trial. A written order was filed specifying that the new trial was granted on the ground of the insufficiency of the evidence to sustain the verdict. On March 20,1958, plaintiff filed a notice of motion to set aside the order granting a new trial on the ground that it was void. Defendant’s attorney filed affidavits in which he stated that he could not say with any certainty on what date he received notice of entry of judgment but that he believed he had filed his motion for new trial in time; that mails are sometimes delayed for as much as a week during the holiday season and that he was convinced that the notice of entry of judgment could not have been received before December 23 or 24, 1957. An order based on said affidavits was, on August 28, 1958, made and entered upon the clerk’s minutes denying defendant’s motion for a new trial. On September 10, 1958, a minute order was made vacating and setting aside the minute order of August 28, 1958, and denying plaintiff’s motion to vacate the order granting a new trial. None of the orders made subsequent to the minute order of February 14, 1958, purport to correct that order

nunc pro tunc,

as being incorrectly entered due to clerical error.

Except as otherwise provided in section 12a of the Code of Civil Procedure, under section 660 thereof, the power of the court to pass upon a motion for new trial expires 60 days from and after service upon the moving party of written

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