Beck v. Superior Court

SHENK, J.

By this proceeding in certiorari the petitioner seeks the annulment of an order granting a new trial.

In the matter of the Estate of Chris Norgard, deceased, the petitioner contested the will after probate. The contest was tried in the Superior Court in and for Mendocino County, before Judge W. D. L. Held of that county sitting with a jury. A verdict in favor of the contestant was returned by the jury on October 26, 1940, and an order was entered on October 30, revoking the probate of the will. A notice of intention to move for a new trial was filed on November 7. On November 22 Judge Held made and entered in the minutes of the court an order reciting the presence of counsel for both parties and ordering that “the motion for a new trial is hereby set for December 6, 1940.”

The minutes of the court of December 6, with Judge Held presiding, show the following: ‘ ‘ said matter [Estate of Chris Norgard] is hereby continued to December 9,1940 for hearing on motion for new trial.” On December 9, Judge Donald Geary of the Superior Court in and for Sonoma County was presiding in the Superior Court in Mendocino County in the place of Judge Held, and in turn Judge Held was presiding on the same day in Sonoma County in Judge Geary’s place. When the motion

for

a new trial was called by Judge Geary on December 9, both parties were represented by counsel. The minutes of the court for that day show: “This matter came on for hearing on motion for new trial ... upon the statement of Judge Geary that Judge Held was supposed to be holding court in Sonoma County, it was stipulated that Judge Held is out of the County. Hearing is hereby continued by consent to December 18, 1940, in order that Judge Geary may read the transcript prepared in this matter.” The minutes of December 18 show: "This matter came regu

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larly on for hearing of motion for new trial . . . Respective counsel stipulated that trial Judge Hon. W. D. L. Held is at this time absent from the County of Mendocino.” After argument on that day the motion was submitted for decision. On December 28, Judge Geary signed an order granting a new trial upon the ground of insufficiency of the evidence and other grounds, which order was filed on December 30, 1940. No appeal was taken from this order.