Carton Corporation v. Superior Court

CASHIN, J.

A petition for a writ of mandate directing the Superior Court in and for the County of Alameda to hear and determine a motion for a new trial.

It appears that in an action pending in respondent Court issues of fact are raised by the pleadings; that the cause having come on for trial, evidence was adduced by the plaintiff (who is the petitioner here) in support of the allegations of its complaint, and that upon the conclusion of the latter’s ease a motion by the defendant for a nonsuit, on the ground that plaintiff had failed to prove a sufficient case for the jury, was granted. Thereafter and within the time provided by statute petitioner served and filed a notice of intention to move for a new trial upon the minutes of the Court and the pleadings and papers filed in the action, stating as one of the grounds therefor errors of law occurring at the trial and excepted to by plaintiff. Therewith was served a notice of the time and place of making the motion. Defendant thereafter moved to strike from the files the notices mentioned, which motion was granted.

It is urged by respondent that the facts stated do not bring petitioner’s motion within the purview of the statute

[436]

providing for the granting of new trials, and, further, that the judgment upon the motion for a nonsuit being appealable, petitioner has by that means a plain, speedy, and adequate remedy in the ordinary course of law.

That the action of the court in improperly granting or denying a motion for a nonsuit, whether made upon the opening statement or after the close of the evidence, is an error of law occurring at the trial, and that such error is ground for a new trial, has been repeatedly declared by the decisions of the courts of this state

(Stow

v.

Superior Court,

178 Cal. 140 [172 Pac. 598];

Smith

v.

Hyer,

11 Cal. App. 597 [105 Pac. 787];