Bishop v. Superior Court

CRAIG, J.

This proceeding is one in mandate to compel the superior court of Los Angeles County and L. E. Lampton, the clerk thereof, to issue an execution against the defendant, David Evans, and his property on a judgment obtained by petitioner against Evans and one Grant McCartney in an action in the • above-named superior court. Thereafter McCartney moved for a new trial, which motion the court granted. Evans did not join in this motion and made none on his own behalf, but subsequently, and more than ten days after notice of the entry of the judgment, moved the court to vacate and set aside the judgment as against him. This motion the court also granted. Thereafter the petitioner applied to the defendants herein for the issuance of a writ of execution against the property of Evans, which Lampton, as clerk, and the court both refused.

The nature of the original action was one for damages for breach of contract. The court in rendering judgment found that McCartney had acted as the representative of Evans in the sale to the petitioner of certain lands and that McCartney, as such agent, with intent to deceive and defraud the petitioner, had made certain false representations to him concerning the desire of tenants to remain and that these representations were an inducing cause which influenced the petitioner Bishop to enter into a contract for the purchase of the property. The findings contain no statement to the effect that Evans made any of these false representations himself or otherwise authorized McCartney to make them than by employing McCartney to make a sale.

The single issue presented is: Did the order granting a new trial made upon motion of McCartney which directed that the judgment be vacated and set aside have the effect of vacating it as to Evans

1

The order was worded: “It is ordered that motion for a new trial be granted on the ground of the insufficiency of the evidence to justify the findings and judgment.” It was general in its terms.

[48]

The rule is that where an order granting a new trial is general, the effect is to open up the case as to all the parties, even though some of them have not moved for a new trial. (1 Hayne on New Trial and Appeal, sec. 167;