Lauchere v. Lambert

THE COURT.

This appeal is from an order of the Superior Court in and for the County of San Mateo, granting the defendants’ motion for a new trial in an action commenced by plaintiff to recover damages alleged to have arisen out of certain fraudulent transactions, and which action having been brought to trial before a jury resulted in a verdict in the plaintiff’s favor for the sum of fifteen hundred dollars. A motion for new trial having been made by the defendants upon several stated grounds, among which was that of the insufficiency of the evidence

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to justify the verdict, coining on for hearing before the trial court was granted by an oral order directed to be entered by the clerk and which order was made by the trial judge at the conclusion of the hearing upon said motion. The clerk thereupon and on February 21, 1929, caused to be entered in the minutes the following order: “It is ordered that said motion be and the same is hereby granted as prayed.” The plaintiff appealed from said order and in due course perfected his appeal and a bill of exceptions thereon was thereafter prepared, served and in due course settled by the trial court. Thereafter and on September 20, 1929, the trial court of its own motion and

ex parte

caused to be entered in the minutes the following

nunc pro tune

minute entry and order as of the date of February 21, 1929:

“The defendants having heretofore filed in the above entitled court and matter their motion for new trial, the same came regularly on for hearing before the court on the 21st day of February, 1929, Messrs. Ross & Ross appearing as attorneys for the defendants and Messrs. Jackson & Peterson as attorneys for the plaintiff, and said motion having been argued by respective counsel, the court in open court stated its views in said matter, and particularly stated that the evidence introduced was insufficient to justify the verdict, and the clerk of said court having entered a minute order granting said motion for new trial but having inadvertently omitted therefrom the specification that said motion was, among other grounds, granted upon the ground of the insufficiency of the evidence to justify the verdict, and a clerical omission having been made, as the clerk failed to enter in her minutes the specification that said motion was granted upon the ground of the insufficiency of the evidence to justify the verdict.