Whitney v. Superior Court

VAN DYKE, J.

This is an application for a peremptory writ of mandate, commanding the superior court of the city and county of San Francisco to direct the clerk of said court to issue execution on a judgment in favor of the petitioner.

It appears from the petition herein that on the 2d .of November, 1901, the plaintiff, as assignee in the matter of M. A. McKinnon, obtained a judgment against one M. Gallick, as defendant in said action, for the sum of twelve hundred dollars and costs; that no part of said judgment has been paid;

[537]

that after notice of decision and judgment in said action the defendant, on December 16, 1901, gave notice of intention to move for a new trial; thereafter a bill of exceptions on said motion for a new trial was proposed by said defendant, and was settled and allowed by the judge of said superior court,Hon. J. M. Seawell, who tried said cause, and was filed in said action December 9, 1902. Thereafter, on December 15, 1903, said bill of exceptions was amended, and on February 12, 1904, the following order was entered in the minutes of said court in said action: “In this cause the defendant’s motion for a new trial came on this day regularly to be heard, S. Rosenheim, Esq., appearing as counsel for plaintiff, and no one appearing for the defendant. Thereupon on motion of counsel for the plaintiff, it is ordered that the said motion be, and is hereby submitted to the court for consideration and decision.” On February 16th an order was entered in said cause by said court denying the defendant’s motion for a new trial. It is alleged in said petition that on the next day,— to wit, the seventeenth day of February, 1904,—without notice to the attorney for the plaintiff, and in his absence, the court, upon the

ex parte

application of counsel for the said defendant M. Gallick, made and caused to be entered upon its minutes the following order, to wit: “In this cause it is ordered by the court that the order denying defendant’s motion for a new trial, made and entered on the 16th day of February, 1904, be, and the same is hereby, vacated and set aside, and said motion for a new trial be restored to the law and motion calendar of this court for argument.” And thereafter, on the fifteenth day of March, 1904, the court made and entered the following order in said cause: “In this cause the defendant’s motion for a new trial herein having been heretofore submitted to the court for consideration and decision, and now the court having fully considered the same, and being fully advised in the premises, it is ordered that said motion be, and the same is hereby, granted.”