Isleton Canning Co. v. Superior Court

STURTEVANT, J.

This is an application for a writ of prohibition to stop the respondent court from settling a bill of exceptions in the case of

Hechtman

v.

Isleton Canning Co.

the basic case was tried before the court sitting with a jury. The jury returned a verdict in favor of the plaintiff and a judgment was entered thereon. Written notice of the entry of the judgment was given by the plaintiff to the defendant August 23, 1929. The defendant did not give the plaintiff a written notice of the entry of the judgment. On September 18, 1929, the plaintiff served a notice of intention to move for a new trial. September 27, 1929, the defendant made a motion to strike said notice from the files. Apparently at the same time the trial court heard the motion for a new trial. Whether it made any order on the motion to strike does not appear, but it does appear that the trial court denied the motion for a new trial. On October 31, 1929, the plaintiff served a notice of appeal. The defendant asserts that the plaintiff’s notice of intention to move for a new trial came too late and that it is a nullity. Continuing, it claims that the notice of appeal also came too late and that it is a nullity and therefore it asserts the trial court is exceeding its jurisdiction by proceeding to settle a bill of exceptions and that this application should be granted. In reply the plaintiff calls attention to the wording of section 659 of the Code of Civil Procedure, and argues that it was the duty of the defendant to have given the plaintiff notice of the entry of the judgment if the defendant would complain that the acts of the plaintiff are dilatory.

The provision of the statute, the meaning of which is in controversy, is as follows: The party intending to move for a new trial must, either before the entry of judgment or within ten (10) days after receiving written notice of the entry of the judgment, file with the clerk and serve upon the adverse party a notice of his intention to move for a new trial, ...” (Code Civ. Proe., see. 659.) The requirement that a notice of intention be given was in the statute when the codes were adopted in 1872. As to when that notice should be given has been the subject matter of many dis

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