Hernandez v. Wilson

MoMURRAY, J. pro tem.

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This is an appeal by defend ant Robert J. Wilson from an order granting a new trial, and

[616]

a cross-appeal by plaintiff from the judgment entered in the same action in favor of the defendant. The defendant contends that the court erred in granting a new trial since such order was granted solely on the ground that an error of law occurred during the trial of the action. Defendant’s position is that there was no error of law, and that, therefore, the order granting a new trial was itself erroneous.

During the trial of the principal action on the first day of trial the attorney for the plaintiff, after selecting a jury, stated: “I think the first day’s jury fees are up. Plaintiff waives jury.” Defense counsel said: “Well, I will pick them up.” Whereupon, plaintiff’s counsel said: “I thought you would, but anyway, I am waiving.” Some discussion followed as to whether or not plaintiff was committed to more than one day’s jury fees and the matter proceeded to trial. This trial was held before a jury for three days, and on the morning of the fourth day, defendant's attorney stated that he was then waiving further trial by jury, whereupon the plaintiff, through her counsel, withdrew her previous waiver and demanded that the trial proceed and conclude as a jury trial.

The court concluded that plaintiff had already waived her right to a jury by the waiver in open court on the first day of the trial, and refused to permit further trial by jury, dismissed the jury, heard the conclusion of the ease and ordered judgment for the defendant. Judgment was entered after findings of fact and conclusions of law and a motion was thereafter made for a new trial. Such motion was upon all statutory grounds.

The motion for a new trial was heard by the court following an argument by both counsel and a consideration of the points and authorities submitted in support of the motion for new trial. At the conclusion of argument the court made the following order relative to the motion for new trial: “After hearing argument by plaintiff and defendant, the motion is, by the court granted pursuant to error in law only, re: subsection 7 of section 657 Code of Civil Procedure.” With further reference to the proceedings had in connection with the motion for new trial, the court further stated: “It is the Court’s own mistake and I am going to grant the motion for new trial on the sole ground of error in law. I could protect the record and say insufficiency of the evidence, but the evidence was overwhelming. So, on the sole ground that there was error in law appearing at the trial and excepted