Tubbs v. Los Angeles Transit Lines

MOORE, P. J.

Defendants appeal from an order granting plaintiff’s motion for a new trial. The action was for damages claimed to have resulted from personal injuries arising out of the allegedly negligent operation of a streetcar of the corporate defendant by defendant Gordon, its employee, while acting in the course of his duties.

The notice of plaintiff’s intention to move for a new trial was addressed only to defendant corporation and its attorney who represented both defendants.

Appellants contend that the failure to give notice to defendant Gordon prevented the trial court from acquiring jurisdiction to entertain the motion for a new trial. This exact question was considered in an identical factual situation by this court in

Spruce

v.

Wellman,

98 Cal.App.2d 158 [219 P.2d 472], wherein it was held that “in the absence of service on the adverse party of notice of intention to move for a new trial the superior court is without jurisdiction to grant the motion” and “an ‘adverse party’ is one whose interest in the subject matter . . . will be affected by the granting of the motion . . ..”

(Ibid.,

p. 160.) That decision is determinative of this appeal.

The order granting a new trial is reversed.

McComb, J., and Fox, J., concurred.