Collins v. Nelson

DORAN, J.

This is an appeal from an order granting defendants’ motion for a new trial.

The facts are as follows: An action was brought by Betty Collins, a minor, against Jack Nelson, a minor, as the result of injuries sustained while riding as a guest in an automobile operated by said Jack Nelson. The matter was tried before the court sitting with a jury. At the conclusion of plaintiff’s case, a motion for nonsuit was presented on behalf of defendant Jack Nelson, which motion was denied. Thereafter, without producing any witnesses, said defendant presented a motion for a directed verdict, which was also denied. The jury returned a verdict in favor of plaintiff, whereupon counsel for the minor defendant made a motion for judgment

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notwithstanding the verdict, said motion being made in the alternative form, reserving the right to apply for a new trial if such motion were denied. The motion for judgment, however, was granted, and the court ordered said judgment to be entered in favor of defendants. Upon appeal by plaintiff, the appellate court reversed the holding of the trial judge and directed the court below to enter judgment on the verdict as rendered.

(Collins

v.

Nelson,

16 Cal. App. (2d) 535 [61 Pac. (2d) 479].)

Defendants filed notice of intention to move for a new trial, on December 12, 1936. Following this, and on-behalf of plaintiff, affidavits alleging disqualification, bias and prejudice of the trial judge were filed; the trial judge thereafter filed affidavits denying such bias and prejudice.

On January 13, 1937, when the motion for a new trial was to be heard, counsel for plaintiff presented a written motion for disqualification of judge, requesting the court to refer the matter of his disqualification to another judge, under the provisions of section 170 of the Code of Civil Procedure. The trial judge denied said motion for disqualification and heard the motion for a new trial, which was thereupon granted. As heretofore stated, plaintiff at this time appeals from the order granting defendants’ motion for a new trial.