Holquin v. Allison

CRAIG, J.

On January 25, 1928, the petitioners herein were awarded a verdict in the sum of $4,000 damages against the respondents Daley Water Company, a corporation, and Augua Mansa Company, a corporation. On March 19, 1928, a motion for new trial was argued and submitted upon briefs, the plaintiffs being by stipulation allowed two days and the defendants one day thereafter in which to present their respective written arguments and authorities. It iq alleged by petitioners, and is not denied, that on January 25,1928, “judgment upon said verdict so rendered was thereupon entered in said cause in the presence of said parties and their respective counsel,” and that “thereafter, and in due time, defendants in said action served upon the petitioners herein” a notice of their intention to move the respondent court for a new trial. On March 26, 1928, the respondent court made its order granting the motion for a new trial. Thereafter petitioners moved to set aside the order last mentioned, upon the ground, it is averred, that the court was without jurisdiction to rule thereon after the expiration of two months from the date of the verdict of the jury, and demanded an execution upon said judgment, which was refused. A writ of mandate is here prayed, di

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reeling the respondents superior court and the clerk thereof to issue execution upon the judgment theretofore entered.

Respondents contend that since the period of two months from January 25 th expired Sunday, March 25, 1923, the motion for new trial was properly granted on the following day under the provisions of section 12 of the Code of Civil Procedure. The power of courts to grant new trials is fixed by section 660 of the Code of Civil Procedure, which reads, in part, as follows:

“The power of the court to pass on motion for a new trial shall expire within two months after the verdict of the jury or service on the moving party of notice of the entry of judgment. If such motion is not determined within said two months, the effect shall be a denial of the motion without further order of the court.”

Section 12 of the same code provides that:

“The time in which any act provided by law is to be done is computed by excluding the first day and including the last, unless the last day is a holiday, and then it is also excluded.”