Nichols v. Hast

TRAYNOR, C. J.

After jury verdicts and a judgment for defendant in an action for personal injuries and wrongful death, plaintiffs moved for a new trial on the ground that the evidence was insufficient to justify the verdicts. Defendant appeals from the order granting that motion.

Defendant does not dispute that the trial court could properly conclude that the evidence was insufficient to justify verdicts in his favor. „ He contends only that the court was without jurisdiction to grant plaintiffs ’ motion for a new trial because their notice of intention to make the motion did not meet the requirements of the Code of Civil Procedure. Section 659 provides: “The party intending to move for a new trial must file . . . and serve upon the adverse party a notice of his intention . . . designating the grounds upon which the motion will be made and whether the same will be made upon affidavits or the minutes of the court or both. ...”

Plaintiffs filed and served upon defendant a notice of intention to move for a new trial designating the grounds set forth in subdivision 6 of section 657: 11 Insufficiency of the evidence to justify the verdict... [and] that it is against law. ’ ’ The notice also stated that such grounds would be supported

[600]

by affidavits.*

1

When application is made under subdivision 6, however, “it must be made upon the minutes of the court. ’’ (Code Civ. Proc., § 658.) Plaintiffs’ statement of intention to submit affidavits was therefore unauthorized and was apparently inadvertent for they did not submit affidavits in support of the motion. The only irregularity in the proceedings on the motion was that defendant did not receive formal notice that the motion would be supported by the minutes of the court.

We disagree with defendant’s contention that the court is without jurisdiction to grant a motion for a new trial when the notice of intention to make such motion does not state that it will be made on the minutes of the court. The court may consider its own minutes when ruling on a motion for a new trial (see

Webber