Kroff v. Kroff

KAUFMAN, J.

This is an appeal from an order granting a new trial. The motion was made on the grounds specified in subdivisions 1, 3, 4, 6 and 7 of section 657, Code of Civil Procedure. A minute order was made on the 6th day of October, 1952, granting the new trial on the ground of insufficiency of the evidence to justify the decision. On the same day the court made and filed a written order merely ordering that the motion for new trial be granted without specifying any grounds therefor.

Appellant at the outset contends that the granting of a new trial on the ground of insufficiency of the evidence cannot be considered in the face of this record. With this contention we agree. The formal written order must control over the minute order. (See

Lee

v.

Cranford,

107 Cal.App.2d 677, p. 680 [237 P.2d 986]; Code Civ. Proc., §1003.) Under section 657, Code of Civil Procedure, when a new trial is granted on the ground of the insufficiency of the evidence the order must so specify. Here the controlling order of the court granting the new trial did not so specify.

We turn now to the record to ascertain if the order granting the new trial may be upheld on the other grounds.

Respondent contends the trial court was guilty of errors of law. We agree. The judgment did not declare the rights of the parties. This was an action for declaratory relief. A dispute existed as to the meaning of a document and the plaintiff was entitled to a judicial declaration of her rights. It was the duty of the court to set forth the meaning and effect of the clause in question. Here the court merely adjudged “that plaintiff take nothing by her said cause of action, and that defendant have judgment against plaintiff.”

(American Enterprise, Inc.

v.

Van Winkle,

39 Cal.2d 210-219 [246 P.2d 935];

Weber

v.

Marine Cooks’ & Stewards’

[406]