Payer v. Mercury Boat Co.

DRAPER, J.

This is an action for personal injuries sustained in the explosion of a boat. Jury verdict was in favor of plaintiff against defendant Nollenberger, the alleged seller of the boat, but in favor of defendant Russello, the owner-operator. Both defendants were alleged to have been negligent in assembling and inspecting the boat. Plaintiff’s motion for new trial as against Russello was granted, but Nollenberger's like motion was denied because not filed in time. His motion to vacate the judgment was also denied, and he appeals.

All parties except Nollenberger signed a waiver of notice of time of trial. Formal notice of time of trial was served upon the other parties, but not upon Nollenberger. He was neither present nor represented at pretrial conference, and the record does not reveal whether he was notified thereof. It is undisputed that his attorney was served by mail with a copy of the pretrial conference order, which fixed the time of trial, but stated “Notice of time and place of trial is not waived.”

It is clear that verdict upon an issue of fact may not be entered against a party, in his absence, unless he has had five days’ notice of time and place of trial, and proof of service thereof is made (Code Civ. Proc., § 594). Compliance with this code section is mandatory.

(Gordon

v.

Gordon,

145 Cal.App.2d 231, 233 [302 P.2d 355];

Simon

v.

Tomasini,

97 Cal.App.2d 115, 122-123 [217 P.2d 488].)

Plaintiff, however, argues that service of the pretrial conference order imparted actual notice of trial, and thus in some way satisfied the mandatory requirement of notice and proof thereof. The argument is untenable. The order specifically provided that notice of time and place of trial was not waived. This proviso plainly conveys the understanding that the order is not a notice under section 594, and that such notice is yet to come. We cannot conceive that a document which clearly negates all function as a notice of trial can be construed as a substitute for such notice. Such construction would amount to amendment or repeal of the section. (See

Cahill

v.