Willis v. Superior Court

THE COURT.

This is a petition for a writ of review to determine the validity of an order of the Superior Court of Mendocino County granting a motion for new trial. On May 27, 1931, petitioner as plaintiff went to trial on an action against respondent Carrie A. Van Voast as defendant, and recovered judgment, which was entered, and notice of entry served on said date. Defendant moved for a new trial, which motion was heard by Honorable R. M. Rankin, sitting by assignment of the chairman of the Judicial Council, in said county. Thereafter Judge Rankin returned to his own county, and on July 24th, in his chambers,

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signed an order granting a new trial, which he placed in the mails. The order was received and entered in the records of the case on Monday, July 27th. The period prescribed by section 660 of the Code of Civil Procedure within which the court must pass on such a motion, expired on Saturday, July 25th, the fifty-ninth day after notice of entry of the judgment, for the reason. that July 26th, the sixtieth day, was a Sunday. (See

Payne

v.

Hunt,

(L. A. No. 13227)

post,

p. 605 [7 Pac. (2d) 302], this day decided.) Hence the order is valid only if effective when made, for if its effectiveness dates from the time of its entry by the clerk, it was too late.

We are satisfied, however, that the order is valid. Prior to 1929, the statutes of this state were silent on the power of a superior judge to order a new trial in chambers or out of the county. In

United Railroads

v.

Superior Court,

197 Cal. 687 [242 Pac. 701], we pointed out the distinction between the court and a judge thereof, in so far as the effect of their acts was concerned under existing law, and held that the judge could sign an order of that kind outside the courtroom, but that it did not become effective until filed. In the ease of