Woods v. Walker

SPENCE, J.

This is an appeal by plaintiff from an order granting defendants’ motion for a new trial in a personal injury action.

After the jury had returned a verdict in favor of plaintiff, defendants made a motion for judgment notwithstanding the verdict. The trial court entered its order denying said motion and staying the entry of judgment during the pendency of an appeal from the order. On that appeal, the order denying defendant’s motion for judgment notwithstanding the verdict was affirmed.

(Woods

v.

Walker,

51 Cal.App.2d 307 [124 P.2d 844].) During the pendency of that appeal, plaintiff petitioned the District Court of Appeal for a writ of mandate to compel the clerk of the superior court to enter judgment on the verdict. A peremptory writ of mandate was subsequently issued in that proceeding commanding the clerk to enter judgment on the verdict

nunc pro tunc

as of October 3, 1941, being the date of the order denying defendants’ motion.

(Woods

v.

Rechenmacher,

53 Cal.App.2d 294 [127 P.2d 614].) Judgment on the verdict was entered on July 9, 1942, and was endorsed as recorded on October 3, 1941. Notice of the entry of said judgment was given on July 10, 1942. After the filing on June 18, 1942, of the remittitur on the appeal from the order denying defendants’ motion for judgment notwithstanding the verdict but before the rendition of the decision of the District Court of Appeal on July 7, 1942, commanding the writ of mandate to issue, and before the actual entry of judgment, defendants served and filed on June 24, 1942, their notice of intention to move for a new trial. It is

[971]

not contended that the notice of intention to move for a new trial was prematurely served and filed. (Code of Civil Procedure, sec. 659). Owing to the illness of the judge who had tried the case, the motion for a new trial was heard and determined by another judge. The order granting the motion for a new trial was dated August 4, 1942, and was filed on August 5, 1942. It read “A new trial in the above cause is granted on all of the issues upon the ground of the insufficiency of the evidence to sustain or to justify the verdict and upon the further ground of errors in law occurring at the trial and excepted to by the defendants.”