Cotton v. Hallinan

California Court of Appeal Mar 16, 1962 No. Civ. 19795Published

Before: Draper

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Holding. The court held that a conditional order granting a new trial unless both parties stipulated to a reduced judgment was valid and effective, and the plaintiff's failure to bring the action to trial within three years of that order justified dismissal.

Issues

Whether the trial court's conditional order constituted a valid grant of a new trial.
Whether the condition requiring bilateral stipulation to a reduced judgment was legally valid.
Whether the action was properly dismissed for lack of prosecution under Code of Civil Procedure section 583.

Disposition. affirmed

Quotations verified verbatim against the opinion

“The only reasonable construction of this order is that new trial is granted, and that the parties may avoid that order by agreeing upon reduction of the verdict.”

“Nor do we find any invalidity in the condition stated in the order.”

“Plaintiff did not appeal from the new trial order. He neither sought construction of it nor asked for retrial for more than three years. His own inaction bars further prosecution.”

DRAPER, P. J.

This appeal turns upon construction of the trial court’s order of April 3, 1956, determining defendant’s motion for new trial.

Only three years are allowed to bring an action to trial after entry of order granting new trial (Code Civ. Proc., § 583). Thus if the 1956 order in fact granted new trial, the orders of July 13, 1960, dismissing the action for lack of prosecution and denying plaintiff’s motion for issuance of execution are proper.

The action is for assault and battery. A jury awarded plaintiff $6,000 compensatory damages and $4,000 exemplary damages. On April 3, 1956, 7 days before expiration of the 60-day period allowed for determination of motion for new trial (Code Civ. Proc., § 660), the court made the following order:

“Defendant Hallman’s motion for new trial denied if counsel for plaintiff and said defendant will stipulate to a judgment in the sum of $3000.00 for general damages and $3000.00 for punitive damages, otherwise granted.”

Plaintiff’s counsel, not the same attorneys who represent him on this appeal, did nothing toward seeking trial until January 13, 1960, when the case was set for trial in February. Defendant moved to dismiss for lack of prosecution, and plaintiff moved for issuance of execution on the original judgment. Trial was stayed. The motions were heard by a judge other than the one who made the new trial order. Defendant’s motion was granted and plaintiff’s denied. Plaintiff appeals.

Appellant argues that the conditional portion of the

[417]

new trial order was void. This contention aids him, however, only if the order be treated as a denial of new trial, with a proviso that it will be granted if the condition is met. We think it apparent that this construction is unwarranted. It is true that the first word dealing with disposition of the motion is “denied.” But it is clear that this phrase is modified by that immediately following, stating the condition upon which denial is to be effective. Appellant’s construction would deny all meaning to the concluding words of the order: “otherwise granted.” While it is more common to grant the new trial “unless” remission is filed (see

Cotton v. Hallinan

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DRAPER, P. J.

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