Messner v. Superior Court

KNIGHT, J.

Petitioner obtained a judgment for damages after verdict by a jury in an action for malicious prosecution, and subsequently the trial court granted a new trial. Petitioner now seeks, by this proceeding in

mandamus,

to compel the issuance of an execution, claiming that the order granting the new trial was not made within the period of time allowed therefor by section 660' of the Code of Civil Procedure, and for that reason- is void.

The verdict was rendered on February 28, 1929, and on April 29, 1929, the court made an order to the effect that if petitioner remitted forthwith in writing ten thousand dollars of the damages awarded by the jury the motion for

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a new trial would be denied; otherwise it would be granted. Petitioner refused to comply with the condition thus imposed and consequently the order granting the new trial became effective. At the time these proceedings took place the concluding paragraph of said section 660 read as follows: “The power of the court to pass on motion for a new trial shall expire within

two months

after the verdict of the jury or service on the moving party of notice of entry of the judgment. If such motion is not determined within

two months

the effect shall be a denial of the motion without further order of court.” (Italics ours.) As will be observed, .the verdict was rendered on the last day of February, and respondent contends therefore that since the statute allowed “two months” thereafter within which to pass on the motion for a new trial, the second succeeding month after the verdict was rendered did not expire until April 30th. Petitioner contends that, regardless of the fact that said verdict was rendered on the last day of February, that day was the twenty-eighth day of the month, and that consequently the two months’ limitation fixed by the statute expired on the twenty-eighth day of the second succeeding month, or on April 28th.

We are of the opinion that the case of