Hodgdon v. S. Pac. R.R Co.

McFarland, J. There were several defendants in this action, and judgment went in the court below for plaintiff. A notice of intention to move for a new trial was served and filed by all of the defendants except Leland Stanford and C. P. Huntington, whose names were omitted from the notice. Afterwards, and after the statutory time for filing such a notice had expired, the defendants moved the court to correct said notice by inserting therein the names of said defendants Stanford and Huntington, on the ground of accident, inadvertence, etc. Affidavits were filed on the motion by both sides, and the court denied the motion to correct. From the order denying this motion defendants appeal.

Whether or not a notice of intention to move for a new trial could, under any circumstances, be amended by inserting the name of a party whose time for giving such notice had expired, it is not necessary here to determine. It is sufficient to say that the evidence before [651]the court below was conflicting as to the point whether the omission of said two defendants from the notice was through inadvertence and mistake, or whether it was intentional, and the motion the result of an afterthought. Under these circumstances, the court had to pass upon the evidence and find the fact, and we see no reason for interfering with its judgment in the matter.

Order affirmed.

Searls, C. J., Shárpstein, J., Paterson, J., Thornton, J., and McKinstry, J., concurred.