Occidental Real Estate Co. v. Gantner & Mattern

HALL, J.

This is an action for unlawful detainer, brought ■ against defendant Morris Levy after default in the payment of rent and three days’ notice in writing demanding its payment and possession of the premises, under subdivision 2 of section 1161, Code of Civil Procedure. Gantner & Mattern (a corporation) was made defendant because in possession of a. portion of the premises as a subtenant of defendant Levy.

The jury rendered a verdict in favor of defendant and against plaintiff, which the court at once upon its own motion vacated, and granted a new trial, and from this order-defendant Levy has appealed to this court.

We say the court upon its own motion vacated the verdict and granted a new trial advisedly, for although the statement of the case upon appeal shows that the attorney for the plain

[729]

tiff asked the court to make such order, and called its attention to the provisions of section 662, Code of Civil Procedure,, under which such power is granted to the" court, the settled statement, after reciting the fact of the rendition of the verdict by the jury in favor of defendant and against plaintiff, concludes as follows:

‘ ‘

Thereupon the court vacated the verdict and granted a new trial, on its own motion, on the ground that there had been such a plain disregard by the jury of the-instructions of the court and the evidence in the case, as to-satisfy the court that the verdict was ordered” (rendered) “under a misapprehension of such instructions under the-premises of section 662

of

the Code of Civil Procedure of this. State.” This is conclusive upon us that the order was made-by the court upon its own motion, and the contention of appellant that the order was made upon the motion of plaintiff" cannot be sustained. The colloquy that took place between the attorney for the plaintiff and the court immediately upon the return of the verdict cannot be regarded as a formal motion for a new trial on the part of plaintiff, but was simply the calling of the court’s attention to its power under section 662, Code of Civil Procedure.