Peters v. Anderson

THOMPSON (IRA F.), J.

The appellant brought this action under section 29b of the Workmen’s Compensation, Insurance and Safety Act (Deering’s Gen. Laws, 1923, p. 1736) against respondents as stockholders of the California Building & Loan Association to recover damages which appellant claims she sustained by reason of the death of her husband on June 2, 1926. After trial, and on September 13, 1929, the jury returned verdicts in favor of appellant and against respondents for their proportionate share of $21,500. On the following day the respondents moved for judgment notwithstanding the verdict and at the time this motion was argued counsel for appellant stipulated that the respondents might make a motion for a new trial, on all the grounds set forth in the code, without the filing of a notice of intention so to move. Thereupon the motion for judgment notwithstanding the verdicts was denied by the court and the motion.for new trial was granted. At the time this motion was granted, to wit: September 14, 1929, no written notice of intention to move for a new trial had been filed and no filing fee therefor had been paid or tendered to the county clerk. On September 20, 1929, appellant served notice of entry of judgment on respondents’ attorneys and on September 25th the latter served and filed a written notice of intention to move for a new trial and paid the necessary fee therefor. On October 3d, appellant filed notice of appeal from the order of September 14th. On October 14th, respondents made their second motion for a new trial, to which counsel for appellant objected on the ground that the court had lost jurisdiction by making the order previously, but the new trial was nevertheless

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granted. On October 17th, appellant filed notice of appeal from this second order granting a new trial. The two appeals were consolidated by stipulation of counsel.

Appellant contends that the court had no jurisdiction to hear and grant the first order for a new trial on September 14, 1929, because no written notice of intention to move for a new trial had been served or filed; and secondly, that the court was without jurisdiction to hear and grant the second motion for a new trial on October 14, 1929, for the reason that the court had previously heard and granted a similar motion which had not been vacated or set aside; and lastly, that the superior court lost jurisdiction to further consider the motion for new trial after October 3, 1929, when appellant perfected her appeal from the first order granting a new trial.