Weinrich v. Sacramento Valley Sugar Co.

JAMISON, J.,

pro

tem.

These two cases were actions for damages for injuries inflicted upon respondent, Bernedette E. Weinrich, in case No. 3850, and for damages for the death of the mother of respondents Mercedes E. McLain and Bernedette E. Weinrich in case No. 3851, both caused by the alleged negligence of appellant A. M. Gelston in the operation of an automobile, "the said Gelston, at the time of said accident, being an employee of appellant Sacramento Valley Sugar Company and engaged in the performance of his duties as such employee. The two cases were consolidated and tried together. They were tried by a jury, which returned a verdict in favor of the appellants, and judgment was thereupon rendered in their favor. Respondents thereupon filed a motion for a new trial, which motion was by the court granted, and from the order granting the same, appellants have appealed.

In their briefs filed in these cases appellants rely for reversal upon the ground alone that the trial court has lost jurisdiction to hear and pass upon the said motion for a new trial. Appellants base their contention upon the failure of respondents to comply with the requirements of rule XX, subdivision 5, of the rules promulgated by the Judicial Council, as said rule stood from August 1, 1928, to February 1, 1929, at which said last-named date the said rule was amended.

This rule, as it stood before said amendment, was as follows : ‘ Within ten days after a notice of intention to move for a new trial shall have been filed, the party seeking the new trial shall serve and file a memorandum of points and

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authorities relied upon, and within ten days thereafter the adverse party shall serve and file a corresponding memorandum in reply thereto. Said motion for a new trial shall be set for hearing not later than fifty days after service of notice of the entry of said judgment.”

The notice of intention to move for a new trial in these cases was filed on November 14, 1928, and the said motion came on for hearing before the court on December 3, 1928. No memorandum of the points and authorities relied upon by respondents had, up to said last-named date, been filed by them as required by said rule. At the said hearing on December 3, 1928, respondents asked permission of the court to file the said points and authorities, and, over the objection of appellants that the court had lost jurisdiction to proceed with the hearing of said motion, it permitted this to be done. Arguments were then had on said motion, defendants reserving their said objection to said hearing, and on December 17, 1928, the court made its order granting said motion.