Beckley v. Vezu

BARNARD, P. J.

The defendant county appealed from an order denying its motion for a judgment notwithstanding the verdict, and the respondents have moved to affirm the order thus appealed from upon the ground that there is no sufficient record before this court. It is contended that no reporter’s transcript has been properly or legally filed herein because the request for the preparation of such a transcript was not made within ten days after notice of the making of the order appealed from.

On July 31, 1936, the appellant filed a motion for a judgment notwithstanding the verdict, reserving the right to move for a new trial. On August 7, 1936, this motion was denied and the respondents served and filed a notice of entry of judgment. On August 7, 1936, respondents filed a motion for a new trial on the issue of damages only. On August 8, 1936, the appellant filed a motion for a new trial on general grounds. On August 26, 1936, the appellant’s motion for a new trial was granted on the ground that the evidence was insufficient to sustain the verdict. On September 4, 1936, the appellant served and filed a notice requesting the preparation of a reporter’s transcript in accordance with section 953a of the Code of Civil Procedure. The reporter’s transcript and the clerk’s transcript were certified, approved and settled by the trial court and were filed in this court on November 5, 1936.

Under section 629 of the Code of Civil Procedure, when a motion for judgment notwithstanding the verdict is made in the alternative, reserving the right to move for a new trial in case it is denied, the subsequent granting of a motion for a new trial cannot affect the right of appeal from an order denying the motion for judgment notwithstanding the verdict.

(Barthelmess

v.

Cavalier,

2 Cal. App. (2d) 477 [38 Pac. (2d) 484].)

The sole point presented by the motion to affirm the judgment is whether the ten days ’ notice required by section 953a of the Code of Civil Procedure commenced to run with notice of the order denying the appellant’s motion for judgment notwithstanding the verdict or with notice of the entry of the order granting the appellant’s motion for a new trial.

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