Keller v. Cleaver

MARKS, J. This is a motion to dismiss appeals or affirm an order granting a new trial under the provisions of section three of rule V of the Rules for the Supreme Court and District Courts of Appeal.

The case was tried before the Honorable H. G. Ames, judge of the Superior Court of Orange County. A judgment for defendant dated April 10, 1935, was filed and recorded May 10th. On May 28th the plaintiff filed her notice of intention to move for a new trial on all statutory grounds. The motion came on for hearing before the Honorable J. 0. Moncur, then sitting in Orange County. It was argued and submitted on that date. Under date of July 23, 1935, plaintiff gave notice to defendant that the court “did, on the 12th day of July, 1935, make and enter its order granting to the plaintiff a new trial”. On July 31, 1935, defendant gave his notice of appeal from this order and on the same day filed a request for the transcript under the provisions of section 953a of the Code of Civil Procedure. Among the things he requested was the incorporation in the transcript of “all proceedings taken on motion for a new trial and all matters to which the same relate, also all papers and affidavits filed by either said plaintiff or said defendant above named, or used by either of said parties on the hearing of said motion for a new trial, and any opinion and any order rendered, entered or filed on or after said hearing of said motion for a new [548]trial, and. all minute entries effecting, relating or pertaining either to said trial or the hearing on said motion for a new trial or the granting of said motion”. s

By an order dated August 26th, and filed August 29, 1935, the Honorable J. 0. Honour made the following order:

“WHEREAS, a motion for a new trial was made by plaintiff in the above entitled case on or about July 11, 1935, and

“WHEREAS, the matter was duly argued by counsel for the respective parties hereto and submitted to the Court for its decision, and

“WHEREAS, the court on or about July 12th, 1935, decided the same, and

“WHEREAS, through an inadvertence a formal order on the hearing of said motion was not made or entered,‘IT IS THEREFORE, ORDERED, ADJUDGED AND DECREED, that the following order be entered by the clerk of the above entitled court non pro tunc as of July 12th, 1935, to-wit: