Dixon v. Hartnett

TYLER, P. J.

Motion for diminution of record. Respondents herein have made a motion for diminution of record by incorporating in and making part of the transcript on appeal an order amending

nunc pro tunc

an order granting a motion for a new trial. The order amending the record was made under the following circumstances: An appeal was taken by contestants from an order granting a motion for a new trial of the contest of the probate of the will of deceased. The contest was tried before a jury in February, 1930, nearly four years ago, which resulted in a verdict in favor of contestants, the jury finding the will to have been executed by virtue of undue influence exerted upon the deceased. This verdict was set aside by the court in March, 1930, the court subsequently granting a motion on the part of proponents for judgment notwithstanding the verdict. Contestants appealed from this judgment and it was reversed, and the trial court was directed to enter judgment on the verdict.

(Estate of Easton,

118 Cal. App. 659 [5 Pac. (2d) 635].) Upon the going down of the

remittitur

on March 3, 1932, judgment on the verdict was entered in contestants’ favor. Five days thereafter proponents served and filed a notice of intention to move

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for a new trial based upon several grounds. The motion was granted by a minute order general in terms, the order reading “Motion for a new trial granted”. An appeal was taken from this order by contestants in due course. The ease was placed upon the August, 1933, calendar for hearing. Nothing was said in the briefs of either party concerning the form of the order granting a new trial, it being conceded by them that the order was a general one. The ease proceeded to argument. Respondents, in support of the general order granting a new trial, proceeded to argue that the order was based upon the insufficiency of the evidence, and were met with the objection that the order being general no such issue was involved.

Counsel for respondents argued that, notwithstanding the order granting a new trial was a general one, the motion having been based upon several grounds, including the insufficiency of the evidence, section 657 of the Code of Civil Procedure did not control, as the order implied it was granted on the insufficiency of the evidence. Counsel was granted the privilege of presenting authorities upon this question. Up to this time it is clearly manifest that counsel was well advised that the order granting a new trial was a general one. Instead of presenting authorities to support his argument, counsel for respondents then proceeded to the court below and obtained an