Armstead v. Jackson

PLUMMER, J.

This cause is before us upon the defendants’ appeal from an order of the trial court granting the plaintiff’s motion for a new trial on the ground of insufficiency of the evidence to sustain the verdict.

The action is based upon the alleged negligence of the defendant Fred C. Jackson, in driving an automobile in such a manner as to result in the death of A. IT. Armstead, the husband of the plaintiff. The verdict of the jury was in favor of the plaintiff, sustaining the allegations of the complaint as to the negligence of the defendant Fred C. Jackson, but rendered damages in favor of the plaintiff in the sum of only $663.40.

[727]

Upon this appeal no question is tendered, no argument is made, and the court’s attention is not called to anything in the record which would tend to show that the order of the court granting a new trial for the grounds stated is erroneous. The only question tendered for consideration upon this appeal is the alleged want of notice to the defendants of the time of hearing the plaintiff’s motion for a new trial.

The clerk’s record in this case shows the following papers: Affidavit of mailing of notice of appeal; affidavit of mailing notice that transcript be prepared; amended answer; amended complaint; certificate to judgment-roll; clerk’s certificate to transcript; clerk’s certificate; notice of appeal and affidavit of mailing; judgment; minutes on motion for new trial; minute order granting plaintiff’s motion for new trial; notice of appeal; notice of intention to move for new trial; notice that transcript be prepared and notice of appeal; verdict. Nothing in the judgment-roll nor in any papers just referred to shows that the defendants did not have notice of the time and place of hearing of plaintiff’s motion for a new trial. The minute order of the trial court relating to the hearing and submission of plaintiff’s motion for a new trial does recite that counsel for the defendants were not present.

The reporter’s transcript, as requested by the appellant, contains simply the testimony introduced upon the trial of the action, and was certified to as correct on the twenty-fifth day of March, 1929. So far as the record was made in the court below, there is not a word or syllable indicating that notice of the hearing of the motion for new trial was not given. In fact, appellants, in their briefs, do not claim that notice was not given, but only that notice, as required by section 1005 of the Code of Civil Procedure, was not given. Be this as it may, there is nothing in the record to support the contention of appellants in this particular. "Whether the motion for a new trial was or was not heard by the trial court after due notice thereof, or whether the order granting the motion for new trial was improvidently made on the ground that no sufficient notice of the hearing of the motion for new trial, was never presented to the trial court for determination. No motion was ever made in the trial court to set aside the order granting the motion for a new trial on the ground that it was improvidently made