Smith v. Ibos

GRAY, J.,

pro tem.

The trial before the jury resulted in a judgment in favor of appellant and against respondent. Thereafter appellant notified respondent of the entry of judgment and respondent served and filed notice of his intention to move for a new trial. This notice designated the grounds of the future motion as (1) insufficiency of the evidence to justify the verdict and that the verdict was against law and (2) error in law occurring at the trial and excepted to by the respondent, but failed to designate whether the motion would be made upon affidavits or the minutes of the court or both. In due course, respondent made a motion for a new trial to the consideration of which appellant objected upon the ground that the notice was insufficient to confer jurisdiction on the court to entertain the motion, since the notice by reason of its omission did not meet the requirements of section 659 of the Code of Civil Procedure. While the motion was under submission and on the twenty-fifth day after service of notice of entry of judgment, respondent served and filed a corrected notice of his intention to move for a new trial, which contained the designation previously omitted. Subsequently the court made its order granting a new trial, from which the present appeal is taken. In support thereof, appellant reiterates his claim that the original notice was insufficient and that the corrected notice came too late to supply the former’s deficiency.

[553]

The right to move for a new trial is statutory and unless the procedure prescribed by sections 656 and following of the Code of Civil Procedure is followed, the right does not exist as against a party who insists upon strict compliance with those sections.

(Simpson

v.

Budd,

91 Cal. 488 [27 Pac. 758];

Burton

v.

Todd,

68 Cal. 485 [9 Pac. 663] ;

California Imp. Co.