Broderick v. Sutherland

McCOMB, J. From an order granting defendants’ motion for a new trial after a jury had returned a verdict in favor of plaintiff for the sum of $3,500 in an action to recover damages for personal injuries, plaintiff appeals.

Facts : On November 16, 1948, the clerk in the trial court entered the following minute order:

11 Gome now the parties by their respective counsel, Royal M. Galvin for the plaintiff, and Parker, Stanbury & Reese by White McGee, Jr., for the defendants, and the defendants move the court for a new trial herein, upon the grounds stated in the notice of intention to move for a new trial, filed herein. After argument by Counsel, the Court rules as follows: If consent for reduction of judgment to $2,000.00 is not filed within ten days, motion for a new trial is granted on the ground of the insufficiency of the evidence to sustain the verdict ; otherwise the motion will be denied. ’ ’

On December 15, 1948, another minute order was entered, reading as follows:

‘1 It is ordered that the minute order of November 10, 1948 be corrected nunc pro tunc as of November 10, 1948 by changing the words ‘Will Be’ to ‘Is’, so the minute order will read as follows: If consent for reduction of judgment to $2,000.00 is not filed within ten days, motion for a new trial is granted on the ground of the insufficiency of the evidence to sustain the verdict; otherwise the motion is denied. ’ ’

Questions : First: Since the trial court, in granting the motion for a new trial on the ground of the insufficiency of the evidence to sustain the verdict, did not so specify by giving the clerk a written order, was the minute order of November 16, 1948, ineffectual as contrary to the provisions of section 657 of the Code of Civil Procedure?

This question must be answered in the negative. Plaintiff in contending that the minute order was ineffectual because the trial court did not, by a written order, direct the clerk to enter a minute order granting a new trial on the insufficiency of the evidence, relies on Thomas v. Driscoll (1940), 42 Cal.App.2d 23, 26 et seq. [108 P.2d 43], and Whitley v. Superior Court (1941), 18 Cal.2d 75, 82 [113 P.2d 449], which cases sustain plaintiff’s contention. However these cases, so far as this point is concerned, were overruled by the Supreme Court in the case of Dempsey v. Market Street Ry. Co. (1943), 23 Cal.2d 110, 115 et seq. [142 P.2d 929], (See, also, Cox v. Tyrone Power Enterprises Inc. (1942), 49 Cal.App.2d 383, [696391]