Hackel v. Los Angeles Railway

TUTTLE, J. This appeal is taken from an order and judgment of the Superior Court of Los Angeles County made and entered on September 29, 1936, wherein the general demurrer of the defendant to plaintiffs’ complaint as amended, was sustained, without further leave to amend. . Plaintiffs had filed a suit in equity seeking relief on the following state [229]of facts, which are more fully set forth in the complaint to which the demurrer was filed.

On July 5, 1935, the plaintiffs, Arnold M. Hackel and Goldie Hackel, instituted an action for damages in the Superior Court of Los Angeles County, on account of personal injuries sustained by them in a collision between their automobile and a trolley car operated by the defendant corporation. The action came on regularly for trial on October 9, 1935, in department 2 of the superior court, before Judge Harry A. Archbald, and a jury. At the conclusion of the trial on October 10, 1935, the jury rendered a verdict in favor of the plaintiffs and against the defendant in the sum of $12,500, which judgment was duly entered and docketed.

Thereafter, on October 18, 1935, the defendant corporation filed a motion for a new trial, which came on for hearing on November 10,1935, before Judge Archbald, in open court, and at the conclusion of argument by both sides the matter was taken under advisement and submitted for decision. On November 26,1935, one of counsel for the plaintiffs was served with a written notice prepared by counsel for the defendant corporation, stating that defendant’s motion for a new trial had been granted by the court on the ground of insufficiency of the evidence. Several days later, a postcard signed by H. L. Mohrenstecker, deputy clerk of the court, was received by plaintiffs’ counsel containing the same statement.

Thereafter the case was again set for trial in department 17 of the superior court, and came on regularly for trial on January 16, 1936, before Judge Carl A. Stutsman and a jury. At the conclusion of the trial on January 17th, the jury returned a verdict in favor of the defendant and against the plaintiffs. Plaintiffs subsequently filed a motion for a new trial on the usual statutory grounds, which motion was by the court denied.

On July 20, 1936, one of counsel for the plaintiffs had a conversation with H. L. Mohrenstecker, deputy clerk of department 2, and'then and for the first time learned that no written order granting defendant’s motion for a new trial had been made or signed by Judge Archbald within the statutory period, and that the only record of any attempted disposition of the motion by him was an unsigned entry made by the clerk herself in her minute book on November 26, 1935, which entry was made by her following an oral instruction