O'Connell v. Main & Tenth Streets Hotel Co.

Temple, C. This action is based upon two contracts, and the complaint contains two counts or causes of action. The first is upon an account stated for materials furnished, and as to it no question is raised, t The second cause of action arises upon a contract by which plaintiffs agreed to perform certain work, according to the plans and specifications, and furnish certain materials for the construction of a hotel which defendant was then building at Los Angeles, and for which defendant agreed to pay forty thousand dollars. Plaintiffs were to manufacture and deliver at the building all the iron-work required above the basement.

After plaintiffs had furnished a small portion of the material contracted for, defendant became embarrassed and asked for delays, and finally failed to resume work upon the proposed hotel, or to receive any further ma[518]terial from plaintiffs. Plaintiffs, at the request of defendant, suspended work, and now sue for damages resulting from a breach of the contract.

Plaintiffs recovered judgment, and the defendant moved for a new trial. It is objected that the court had no jurisdiction to entertain the motion, because, as plaintiffs claim, no notice of intention to move for a new trial was given. The notice given was, that defendant “ intends to and will move this court to set aside the decision and judgment heretofore rendered, entered, and made in said cause, upon the following grounds, to wit.” Then follow three of the grounds set'out in section 657 of the Code of Civil Procedure, to wit: Insufficiency of the evidence to justify the findings and decision herein, and that they were against law; errors in law;.and newly discovered evidence. It also states that the motion will be made upon, a statement of the case, bill of exceptions, and affidavits, as defendant may be advised.

A motion for a new trial is a special proceeding within the case, and I agree with respondent that the court has no jurisdiction to entertain the motion, unless the notice of intention is given substantially as prescribed. The objection to this notice is, that it does not formally give notice that a new trial will be asked for. But if it does distinctly and unmistakably give that information, it must be held sufficient, and I think it does. Notice is given that defendant will move to set aside the decision. I do not think of any case in which such motion is mentioned in the Practice Act, except for the purpose of a new trial. There might be a motion to vacate a judgment upon various grounds; but could any attorney imagine such a motion based upon the ground of insufficiency of the evidence, or errors at law occurring at the trial, or for newly discovered evidence, and made upon a statement of the case, unless it were a motion for a new trial under the statute authorizing and requiring these things?