Shepherd v. Superior Court (1921) · DecisionDepot

Shepherd v. Superior Court

Name: California Superior Court Tentative Rulings
Creator: DecisionDepot
License: https://creativecommons.org/licenses/by-nc/4.0/

California Court of Appeal Oct 27, 1921 No. Civ. No. 4053.Published

Before: Waste

AI Brief

AI-generated · verify before citing

Holding. The court held that the trial judge lacked jurisdiction to grant a new trial because the order was made out of court and after the statutory period for determining the motion had expired. Consequently, the motion was denied by operation of law, and a writ of prohibition was issued to restrain the retrial.

Issues

Whether a judge may perform the judicial act of granting a motion for a new trial from their private residence.
Whether the trial court's jurisdiction to determine a motion for a new trial expires if not acted upon within the statutory time limit, even if the final day is a holiday.

Disposition. Peremptory writ of prohibition issued.

Quotations verified verbatim against the opinion

“The general rule is, that all judicial business must be transacted in court, and the authority to transact such business out of court is exceptional, and does not exist unless expressly authorized by statute.”

Synopsis

APPLICATION for a Writ of Prohibition to restrain the Superior Court of Fresno County and S. L. Strother, Judge thereof, from proceeding with the retrial of a ease, following the making of a void order granting a new trial.

The facts are stated in the opinion of the court.

WASTE, P. J.

The petitioners have applied for a writ of prohibition to restrain the respondent from proceeding with the retrial of a case, after motion for a new trial granted. The order purporting to grant the motion is regular on its face, but is shown by uncontroverted evidence to have been irregularly made and entered.

The petitioners were defendants in an action, brought in the court below, entitled

Kahriman et al.

Shepherd et al.

(No. 23,376). Judgment was rendered in their favor. On

[675]

the third day of January, 1921, as such defendants, they gave notic§ to the plaintiffs in the action of the entry of the judgment. Plaintiffs in the action thereupon interposed a motion for a new trial, which, after argument and submission, was taken under advisement by the trial court. By the terms of section 660 of the Code of Civil Procedure the period of limitation on the power of the court to determine the motion expired on Sunday, April 3d. Between 3 and 4 o’clock on Saturday afternoon, April- 2d, the trial judge telephoned from his residence to his courtroom clerk, who was then at his own home, to enter an order granting the motion for a new trial. This order was not entered by the clerk until the next Monday morning, April 5th, when it was made to appear in the minutes as though made and entered during a regular session of the court on Saturday, April 2d. The petitioners here subsequently made a motion to vacate and set aside the order granting a new trial, which was denied, and the respondent is about to go forward with the retrial of the case, to prevent which this proceeding was brought. -

The petitioners contend that the action of the trial court in granting the motion for a new trial was a nullity for two reasons which we deem worthy of consideration: First, because the purported order was made on a holiday, and, second, for the reason that it was not given and made in court. Corollary, we may say, to both propositions is the suggestion that the time within which the trial court could determine the motion for a new trial had expired by the limitation fixed by the code section.

Shepherd v. Superior Court

AI Brief

Synopsis

WASTE, P. J.

More from California Court of Appeal

Related research

AI Brief