Hoffman v. Johnson

[768]

BARNARD, P. J.

These actions arose out of an automobile collision. A jury returned a verdict in favor of the plaintiff Hoffman in the sum of $1,367.38. On May 27, 1955, a minute order was entered granting a motion for a new trial. The plaintiff Hoffman has appealed from that order.

The appellant concedes in his brief that at the hearing of the motion for a new trial the court announced from the bench that he was granting the motion on the ground of insufficiency of the evidence, and the sole ground of the appeal is that it must be -conclusively presumed that the order granting a new trial was not based upon the insufficiency of the evidence, and that there are no other' grounds- upon which that order could be based. It is argued that no order has ever been filed showing that the motion was granted on the ground of the insufficiency of the evidence, or on any other ground; that under the provisions of section 657 qf the Code of Civil Procedure it will be conclusively presumed that such an order was not based upon the insufficiency of the evidence unless that ground is specified in writing and filed with the clerk within 10 days after the motion is granted; • that a minute entry is not a sufficient compliance with that section; and that no other grounds for granting the motion can be here considered since no affidavits were filed as required by section 658, when the application is made for a cause mentioned in the first four subdivisions of section 657. In the closing brief it is argued that the minute entry was corrected by a

nunc pro tunc

order made on October 11, 1955; that since this

nunc pro tunc

order was. not.filed within 10 days it must be conclusively presumed that the new trial was not granted on the ground of the insufficiency of the evidence, as held in

Dempsey

v.

Market Street Ry. Co.,

23 Cal.2d 110 [142 P.2d 929] ; and that since the court had no authority to enter a

nunc pro tunc