Jackson v. Dolan

TYLER, P. J.

This is an appeal from an order denying a motion to vacate an order granting a new trial, and also a motion to amend the minutes of the court. The action in

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which these motions were made was one brought to recover damages for personal injuries received in an automobile accident. The case was tried before a jury and a verdict in the sum of four thousand dollars was rendered in favor of plaintiff and judgment was entered thereon on December 15, 1920. Thereafter, on the seventeenth day of December, 1920, defendants made a motion for a new trial and the motion was by the court taken under advisement. No action was had on such motion until January 3, 1921, when the minutes of the court show as of date of December 31, 1920, that the motion was granted as. to defendant Ashe. The term of office of Honorable Phil D. Swing, the judge who tried the ease and who made the order, expired on January 3, 1921. January 1st and 2d were both legal holidays, so that for all the judicial purposes of this ease the term of office of the trial judge expired December 31, 1920, the day the order bore date. After the granting of the motion for new trial plaintiff perfected an appeal from such order. Subsequently, on the twenty-second day of April, 1921, he moved the trial court to vacate and set aside the order granting a new trial and to correct the minutes of the court so as to show that the order was made on Sunday, January 2, 1921, instead of Friday, December 31, 1920. This motion was denied, and this appeal is from the order denying such motion. The motion was based on affidavits. The affidavit of the clerk of the court who made the entry in the minutes was to the effect that the order was in fact made on Sunday, January 2, 1921, a legal holiday, and that no other order was ever made. This affidavit was not controverted. The affidavit of the attorney for plaintiff shows that at the time the appeal from the order granting a new trial was taken, and at the time the bill of exceptions was settled and allowed, he did not know that the order appearing in the minute-book was made on the day shown therein, and that he did not ascertain true knowledge of such fact until March 11, 1921, and that in taking his appeal he relied solely upon information derived from the record.

So far as the motion is directed to the vacation of the order granting a new trial, respondent contends that the trial court, by reason of the appeal, lost jurisdiction to afford any relief in the matter, and that the motion to