San Francisco-Oakland Terminal Railway v. Superior Court of Alameda County

This is a proceeding in mandamus to compel respondents to hear and determine on its merits a motion for a new trial regularly made by petitioner in an action in said superior court, in which one Theo. C. Forrester is plaintiff and petitioner is defendant. The alleged ground of respondents' refusal to act is that its power to pass on said motion has expired by reason of the provisions of section 660 of the Code of Civil Procedure, as amended August 8, 1915. The matter has been submitted for decision on a demurrer to the petition.

The case of Forrester against petitioner was tried with a jury and a verdict rendered in favor of Forrester for eight thousand five hundred dollars on June 29, 1915. Judgment was entered on said verdict on June 30, 1915. Within the time allowed by law and as extended by stipulation, viz., on July 19, 1915, petitioner duly served and filed notice of its intention to move for a new trial on various grounds, the notice stating that the motion would be made upon a bill of exceptions to be thereafter prepared and served. All this was in accord with the law as it then was. On August 27, 1915, petitioner appealed from the judgment. On November 8, 1915, the bill of exceptions was regularly signed, certified, and filed. The hearing of petitioner's motion for a new trial was then set for November 26, 1915, and was by consent of counsel postponed from time to time until March 15, 1916. On the day last named, respondents finally refused to hear and determine said motion on its merits.

Section 660 of the Code of Civil Procedure was amended in 1915, the amendment taking effect August 8th, by the insertion, among other things, of this provision, viz.: "The power of the court to pass on motion for new trial shall expire within three months after the verdict of the jury or service on the moving party of notice of the decision of the court. If such motion is not determined within said three months, the effect shall be a denial of the motion without *Page 543 further order of the court." This provision has been held to be a valid exercise of legislative power. (Lancel v.Postlethwaite, ante, p. 326, [156 P. 486].) Prior thereto this section had contained in this regard simply the provision that it still contains, one substantially to the effect that the motion for a new trial must be heard at the earliest practicable time after the record is in such condition as to permit its being heard. No express saving clause as to proceedings on motion for a new trial initiated before the taking effect of the amendment is contained in the section. As on March 15, 1916, more than three months had expired after the verdict of the jury, and also after the taking effect of the amendment and the settlement and filing of the bill of exceptions on which the motion was to be heard, it is clear that upon no theory can petitioner now require the superior court to pass on its motion for new trial, if the provision quoted is construed as applicable under the circumstances stated. In such event the motion stands denied by reason of the failure of the superior court to act within the time prescribed. The question is whether the provision should be construed as being in any way applicable to proceedings on motion for new trial initiated prior to the amendment, and pending at that time.