Garcia v. Bechtol

STEPHENS, J.

Silveria Garcia, as administratrix of the estate of Vincente Garcia, deceased, brought this action for damages for the death of Vincente Garcia, who was killed

[616]

in a collision between two automobiles. The case was tried by the court without a jury and damages were awarded in a substantial sum against the operators of both ears. Bechtol, one of the defendant operators, moved for a new trial and the court made a written order amending the findings of fact under section 662 of the Code of Civil Procedure, so that they found the other defendant’s negligence to be the sole cause of the collision and in such a manner as to relieve Bechtol from the judgment. The order also stated that a new trial was granted Bechtol. A judgment thereon was then made and entered for such defendant and against the plaintiff. The clerk in entering the court’s order on the motimi for new trial made the minutes indicate the granting of the new trial and thereafter a motion was made to set the cause for trial. This motion was stricken and eliminated by the court. This action of the court is the subject of this appeal. Without considering whether or not the order appealed from is an appealable order, it is perfectly clear that the attempted appeal has no merit. There was nothing to try.

Appellant cites cases to the effect that the order controls and the opinion of the trial court has nothing to do with the order. This is correct, but has no application here. The trial court filed no opinion, he merely filed an order and this order could not be avoided or affected in any way by the clerk’s abbreviation of it in his minutes.

The order appealed from is affirmed.

Craig, Acting P. J., and Archbald, J.,

pro tem.,

concurred.