Francis v. Superior Court

PETERS, P. J. By this proceeding petitioner seeks by writ of prohibition to restrain the superior court from enforcing its order granting a new trial in the case of Ruth Brune v. Guy Francis. It is urged that such order was void for the reason that it was made more than sixty days after [644]service of written notice of entry of judgment in violation of section 660 of the Code of Civil Procedure. Neither respondent court, nor Ruth Brune, the real party in interest, although properly served, has appeared in this proceeding in opposition to the granting of the writ.

There can be no doubt but that the writ should issue. The petition alleges that on September 28, 1944, judgment, based on a jury verdict, was entered in favor of petitioner in the case of Brune v. Francis; that written notice of entry of judgment was served on the attorney for Ruth Brune on October 2, 1944; that thereafter the attorney for Ruth Brune served and filed a notice of intention to move for a new trial; that such motion was argued on October 25, 1944, and thereupon submitted; that on December 4,1944, the trial court purported to grant the motion for a new trial. Thus it appears that the trial court attempted to grant the new trial sixty-three days after service of written notice of entry of judgment.

Section 660 of the Code of Civil Procedure provides in part: “Except as otherwise provided in section 12a of this code, the power of the court to pass on motion for a new trial shall expire sixty (60) days from and after service on the moving party of written notice of the entry of the judgment. ... If such motion is not determined within said period of sixty (60) days, or within said period as thus extended, the effect shall be a denial of the motion without further order of the court.”

The sixty-day period fixed in this section expired on Friday, December 1, 1944. Unless this period was extended by section 12a of the Code of Civil Procedure, it is clear that the power of the trial court to grant the new trial then expired and the motion was automatically denied. (Kahn v. Smith, 23 Cal.2d 12 [142 P.2d 13]; Kraft v. Lampton, 13 Cal.App.2d 596 [57 P.2d 171]; Spier v. Lang, 4 Cal.2d 711 [53 P.2d 138].)

Section 12a provides: “As to any act provided or required by law to be performed within a specified period of time, such period of time is hereby extended—

“(a) To and including the next day which is not a holiday (other than a special holiday), if the last day of such period falls upon a holiday; and