Biagi v. Howes

Thornton, J. In this case the notice of intention to move for a new trial was given by the defendants in time, and their statement on such motion was filed in time. The court erred, therefore, in striking out defendant’s statement, and in dismissing the motion for a new trial.

The notice of intention to move for a new trial, where the action is tried by the court without a jury, must be given to the party aggrieved within ten days after notice of the decision of the court. (C. C. P., § 659.) Notices must be in writing. (Id, § 1010.)

In this case, the cause was tried by the court without a jury, and the decision was announced by the court on the 28th of [471]March, 1882. Ho notice of the decision eo nomine was ever given, but notice of the rendition and entry of the judgment was given on the 5th of April following. On the 15th of the same month (April) defendants gave notice of their intention to move for a new trial, by serving the notice on the plaintiff’s attorney. On the 15th day of May, 1882, a day posterior to which the time for preparing and serving their statement on this motion had been by the court extended, defendants duly served their statement. Subsequently, on the 17th of May, 1882, plaintiff’s attorney served a notice of a motion for the 26th of the same month, to dismiss the motion of defendants for anew trial, and to strike out the statement, on the grounds that neither the notice of intention was given, nor the statement served, within the time required by law. On the 7th day of June, 1882, the court granted plaintiff’s motion, struck out the statement, and dismissed defendants’ motion for a new trial.

It appears from an affidavit of the plaintiff’s attorney used on his motion, contained in the bill of exceptions, that when the decision was announced by the court, defendants’ attorney was present in court, and heard it; that thereupon he (defendants’ attorney) asked for and obtained an order of the court staying proceedings on the judgment for twenty days, and then and there proposed to affiant that findings be waived; which proposition was agreed to, and it was by the court ordered that findings be waived; that attorney of defendants, among other things, spoke of moving for a new trial, and in other ways expressed dissatisfaction with the decision and judgment.

We are of opinion that the true construction of the statute (§ 659, C. C. P.) is that a party intending to move has a right to wait for a notice in writing (§ 1010, C. C. P.) of the decision from the adverse party, before giving notice of intention to move for a new trial, and that he is entitled to such notice of decision before he is called on to act, although he is present in court when the decision is rendered, and waives findings, and asks for a stay of proceedings on the judgment. This is much the best rule. It is more certain and definite, prevents controversies which, under any other construction, would be likely to arise, and above all accords in our opinion with the intention of those enacting the statute. (Carpenter v. Thurston, 30 Cal.