Lopez v. Capiti

GRIFFIN, J. The three actions against defendant Capiti arose out of a collision between an automobile driven by Capiti, an automobile driven by a Mr. Lamb, and one driven by plaintiff Victor A. Lopez, Jr. The collision first occurred between the Capiti vehicle and the Lamb vehicle. Lamb was killed. Plaintiff Edge, a passenger in the Lamb car, was injured. Thereafter, Capiti’s vehicle collided with plaintiff Lopez’s vehicle. One action was brought by the heirs at law of Lamb, one by plaintiff Edge, and one by Lopez and his ivife. The latter two actions were for personal injuries.

On May 24, 1951, the • jury returned a verdict, in open court, in favor of defendant Capiti, and against all plaintiffs. A judge, other than the trial judge, received the verdict. At that time each and all of the plaintiffs moved the court for judgment notwithstanding the verdict. That judge ordered that the motions be taken under submission, to be determined by the trial judge. Thereafter, and on the same day, the clerk entered a judgment on the verdict. Without any further attention of the trial judge being called to the motions, on June 4,1951, plaintiffs Edge and Lamb et al., filed a notice of intention to move for a new trial on the ground of in[546]sufficiency of the evidence. As to plaintiffs Lopez et ah, a notice of intention to move for a new trial was filed on June 7, and denied by written order made on August 8. The order was filed on August 9th. At the hearing of the motions for new trial before the trial judge, apparently no request was made for a ruling on the motion for judgment notwithstanding the verdict, nor was the court’s attention called to it, and apparently no point was, at that time, made of that fact. After hearing the motions for new trial, on July 17, 1951, said motions were taken under submission. On July 30th, a minute order was made granting the motions. A written order, pursuant to section 657, of the Code of Civil Procedure was required, and on July 30th, a signed order was made granting the motions for new trial, which order was filed on July 31st.

Defendant, on August 16, filed a notice of appeal from the order “made on the 30 day of July, 1951, setting aside the verdict . . . and granting a new trial ...”

Defendant’s first contention is that the trial court was without jurisdiction to grant a new trial. This is predicated upon the claim that more than 60 days had elapsed between the notice of entry of judgment and the order granting a new trial; that although no written notice of entry of judgment was served, by the affirmative act of counsel for plaintiffs moving, on May 24th, in open court, for judgment notwithstanding the verdict of the jury, plaintiffs waived written notice of entry thereof; that such waiver was as effective as though such notice was given on that date. In support of this they cite such cases as Timmons v. Coonley, 39 Cal.App. 35, 37 [179 P. 429]; Hughes v. De Mund, 195 Cal. 242 [233 P. 94]; Forni v. Yoell, 99 Cal. 173, 176 [33 P. 887]; and Jansson v. National Steamship Co., 34 Cal.App. 483, 485 [168 P. 151],