Five-O-Drill Co. v. Superior Court

California Court of Appeal Apr 14, 1930 No. Docket No. 7160.Published

Before: Craig

AI Brief

AI-generated · verify before citing

Holding. The court held that the trial court lacked jurisdiction to grant a new trial because the notice provided to the defendants was legally insufficient under the mandatory statutory time requirements for service by mail.

Issues

Whether the notice of hearing for a motion for a new trial was sufficient when served by mail with less than the statutorily required time period.
Whether the trial court had jurisdiction to proceed with a new trial despite the failure to provide the mandatory notice period.

Disposition. granted

Quotations verified verbatim against the opinion

“the petitioners were not given the legal period of time within which to prepare and present any opposition which they might have had to the motion for a new trial.”

“the plain mandates are obviously controlling.”

CRAIG, Acting P. J.

The petitioners herein, who are four of several' defendants in a civil action pending in the Superior Court of Los Angeles County, were awarded judgment, and the plaintiffs duly served upon respective counsel for each of the defendants a notice of intention to move for a new trial. Thereafter, and on August 12, 1929, plaintiffs’ counsel, whose offices were in the city of Long Beach, mailed to counsel for petitioners at their offices in the city of Los Angeles, in the same county, but not less than twenty-five miles distant, notice in writing that said motion would be heard on August 16, 1929, at 9 o’clock A. M. The motion was then submitted upon oral argument and a memorandum of points and authorities, in the absence of petitioners and their counsel, and on August 29, 1929, it was granted. During the following month petitioners moved to set aside the order granting a new .trial, which was denied, whereupon the plaintiffs set the ease for trial. These petitioning defendants pray a writ of prohibition restrain

[234]

ing further proceedings as to them, alleging that the notice of hearing was insufficient and that the trial court is without jurisdiction to again try the issues as to themselves.

The question presented is governed by rule XIX, subdivision 4 (204 Cal., p. lxxvii), and sections 1005 and 1013 of the Code of Civil Procedure, which prior to the amendments of the codes and on the date of mailing provided as follows:

“ . . . Upon the filing of the notice of intention to move for a new trial, the clerk forthwith shall call the same to the attention of the judge who presided at the trial of the action or proceeding, or the presiding judge, as the case may be, and such judge thereupon shall designate the time at which a hearing will be had on said proposed motion.

Five

(5)

days notice by mail shall be given

thereof by the clerk to the respective parties. ...”

“When a written notice of a motion is necessary, it must be given, if the court is held in the county in which at least one of the attorneys of the party notified has his office,

Five-O-Drill Co. v. Superior Court

AI Brief

More from California Court of Appeal

Related research

AI Brief