Serpa v. Davidson

DOOLING, J. pro tem. Several appeals are here presented on one transcript: 1. An appeal from a purported minute order of November 19, 1940, granting plaintiff a new trial; 2. An appeal from an order of November 20, 1940, granting a new trial; 3. An appeal from an order of November 26, 1940, expunging from the record the minute order of November 19, 1940, first above mentioned; and 4. An appeal from an order of November 27, 1940, denying defendant’s motion to strike and vacate the order of November 20, 1940.

The action was for personal injuries received by plaintiff in an automobile collision. The jury returned a verdict for defendant and plaintiff duly moved for a new trial.

On November 19, 1940, the clerk made an entry in the minutes reciting that “the Court now makes its Order that said motion for new trial be and it is hereby granted on the ground of error in instructions.”

On November 20, 1940, an order signed by the trial judge was filed with the clerk in terms granting the motion for new trial on the following grounds: “1. The insufficiency of the evidence to justify the verdict; 2. That it is against law.”

On November 20, 1940, the clerk made an entry in the minutes reading:

“The Court directs the clerk to enter the corrected minute order herein as follows: Motion for New Trial herein having been presented and submitted the Court now makes its Order that said motion for new trial herein be and it is hereby granted on the grounds of • insufficiency of the evidence to justify the verdict and that it is against law. ’ ’

[621]On November 26, 1940, the trial judge, acting ex parte, signed and filed with the clerk an order herein quoted in full, as follows:

“It appearing that the Clerk through mistake and inadvertence and a misunderstanding that the Court had made an Order, which in fact said Court had not made, made an entry of a purported minute order granting a new trial in the above entitled action on the 19th day of November, 1940.

‘ ‘ That said mistake on the part of the Clerk was due to the fact that he misunderstood the Court to have made an order when in fact said Court was only discussing its intention of making its formal order on the following day, as counsel for the defendant had just cited a Supreme Court decision which the Court wished to consider before making its order either granting or denying the motion for New Trial.