Goldenberg v. Merritt

California Court of Appeal Feb 18, 1952 No. Civ. No. 18592Published

Before: Doran

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Holding. The trial court acted within its authority under Section 662 of the Code of Civil Procedure by setting aside the judgment and reopening the case for the limited purpose of taking additional testimony to correct an evidentiary error.

Issues

Whether the trial court abused its discretion by limiting the scope of a new trial to the testimony of a single witness.
Whether the trial court had the authority to reopen a case for additional evidence under Section 662 of the Code of Civil Procedure.

Disposition. affirmed

Quotations verified verbatim against the opinion

“The intent and purpose of the order of February 5, 1951, as clarified by the nunc pro tunc order, is plain; namely, to rectify the trial court’s previous error in permitting respondent to make use of testimony taken at a previous trial”

“The true purpose of the order was not to grant a new trial but to reopen the case.”

“Neither a want of authority to make the order, nor an abuse of the trial court’s discretion, has been shown.”

DORAN, J. This is an appeal from an order granting appellant a new trial to the extent that the order limits the new trial to the taking of the testimony of one witness only.

It appears that the respondent brought suit against appellant for the sum of $2,187, the purchase price of merchandise purchased by appellant. Appellant admitted the purchase but denied any indebtedness, alleging a counterclaim of $8,986.98 based upon an oral contract that if appellant would assist respondent in obtaining employment as auctioneer to sell certain estate property, respondent would pay appellant one third of the compensation received in selling such property. Respondent secured the employment and earned a fee of $26,960.96. This was a second trial of the action, a new trial having been granted after a previous judgment for respondent.

[300]During the course of the second trial, respondent, over appellant’s objection that no proper foundation had been laid, read into evidence the testimony of one Eddie Allen given upon the occasion of the first trial. Judgment was thereafter entered in respondent’s favor and a motion for a new trial made by appellant on the ground that the trial court erred in permitting respondent to read into evidence such prior testimony of Eddie Allen.

On February 15, 1951, the trial court made the following order:

“Motion of defendant for a new trial having been heretofore submitted on January 11, 1951, the court grants the motion only as to the retaking of the testimony of Eddie Allen.” Thereafter and on August 14, 1951, the trial court made the following order nunc pro tunc:

“It having come to the attention of the court that the record of the order made by this court upon a motion for a new trial in the above entitled case does not fully set forth the order. It is hereby ordered that the same be corrected to read as the same was given, to wit:

“Motion of the moving party having been heard, submitted and considered, it is ordered that the findings and judgment be set aside and the cause reopened for the purpose of taking the testimony of Eddie Allen.”

On this appeal the appellant presents but one point: [1]

Goldenberg v. Merritt

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