Avalos v. Welty

FILES, P. J.

The complaint contains two causes of action, one for injuries sustained by plaintiff Simon C. Avalos in an automobile accident, and the other for injuries sustained by Josephine Avalos in the same accident. A jury returned a verdict in favor of Simon in the amount of $11,000 and in favor of Josephine in the amount of $1,400. Judgment was entered on these verdicts. Defendant then moved for a new trial as to Simon only, upon the ground, among others, of insufficiency of the evidence. The court granted the motion “upon the ground that the evidence is insufficient to justify the verdict of the jury as to general damages” unless Simon consented that the judgment be reduced by $3,000. The order further stated “that defendant’s motion for a new trial as to defendant Josephine Avalos be, and the same hereby is denied. ’ ’

Simon did not consent to the reduction. Both plaintiffs have appealed from the order granting a new trial.

The record on appeal consists only of a clerk’s transcript. The evidence is not before us. We must therefore assume that the evidence supports the order which the trial court made.

(Finney

v.

Lockhart,

35 Cal.2d 161, 164-165 [217 P.2d 19].)

The record does contain an opinion written by the trial judge discussing the evidence when he decided the motion for a new trial. Plaintiffs’ attack upon this opinion is wasted. The opinion does not serve as a substitute for a record of the evidence.

(Estate of Bernard,

206 Cal.App.2d 375, 380 [23 Cal.Rptr. 828].) AYe add, purely as a matter of interest, that we find nothing in the judge’s opinion which impeaches the conclusion reached.

Plaintiffs point out that defendant’s notice of motion

[547]

for a new trial was addressed only to Simon Avalos and makes no reference to Josephine. On this basis they argue that the court had no jurisdiction to grant a new trial which would affect the rights of Josephine, citing