Bauer v. Helene Curtis Industries, Inc.

NOURSE, P. J.

Plaintiffs sued to recover the purchase price of certain merchandise delivered to them as distributors under contract with defendants who were the manufacturers. The basis of the action was a purported breach of warranty of the merchandise sold. In a trial before the court sitting without a jury judgment was entered for the defendant, In due time the plaintiffs moved for a new trial specifying eight grounds. The only ground urged and determined was that numbered 6 which read, “Insufficiency of the evidence to justify the verdict.” The order granting a new trial specified as a ground therefor, “insufficiency of the evidence to justify the decision.” Because of the use of the word “verdict” in the notice of motion and the use of the word “decision” in the order, the appellant contends first, that the trial court was without jurisdiction to hear the motion since such power is conferred by section 657, Code of Civil Procedure, subdivision 6, to a ease of “Insufficiency of the evidence to justify the verdict or other decision . . .” and second, because in granting the motion on the specified ground “insufficiency of the evidence to justify the decision” the court relied on a ground not specified in the notice of motion. To restate the highly technical argument, it is that the trial court had jurisdiction to grant a new trial only subject to a notice specifying insufficiency of the evidence to “justify the verdict or other decision” and since the notice did not specify the “decision” there was no jurisdiction to base the order on that ground.

[68]

Appellant relies on the case of

Martin

v.

Matfield,

49 Cal. 42, which was followed in

Sawyer

v.

Sargent,

65 Cal. 259 [3 P. 872], both holding that' when the notice of motion used the word “judgment” instead of the word “decision” the court was without jurisdiction to grant a new trial. Both cases were written before the days of open plumbing and are no longer authority. Though we do not find that the Martin case has been expressly overruled such is not the case as to