Arvizu v. Imperial Phonograph Service, Inc.

GRIFFIN, Acting P. J. This is an action based on a common count of money had and received, to recover $700 predicated on a claimed fraudulent sale of seven shares of stock in defendant corporation in September, 1946, to plaintiff. In a trial by the court plaintiff recovered judgment in said amount and defendant appealed.

As stated in the opening brief, the only question raised on appeal is the claim that plaintiff unexpectedly testified falsely at the trial as to certain material facts and took defendant by surprise, misled the court, and prevented defendant from having a fair trial, and that upon such showing it was entitled to a new trial ‘as a matter of right, citing such cases as Rudin v. Luman, 53 Cal.App. 212 [199 P. 874] ; and Guy v. Hanly, 21 Cal. 397. In its brief, however, the merits of the conflicting evidence in the case is made the subject of attack.

After entering judgment on February 26, 1952, plaintiff served, on April 25, 1952, notice of entry of judgment. Defendant, on April 30, 1952, gave plaintiff notice of intention to move for a new trial upon the ground indicated and filed affidavits in support thereof. Plaintiff presented a counter-showing. Hearing on the motion was set for June 13, 1952, and counsel for plaintiff was so notified. On June 9, 1952, plaintiff’s attorney [phoned defendant’s attorney and asked for a continuance of two weeks because of his inability to be present and argue the matter on the date set. Counsel for defendant consented to such continuance without thinking that the extension would be beyond 60 days from the date of service of the notice of entry of judgment. Under section 660 of the Code of Civil Procedure the power of the court to pass on that motion expired on June 25th, and the effect was a denial of the motion without further order. (Holquin v. Allison, 97 Cal.App. 126 [274 P. 1037].)

On June 27, 1952, two days thereafter, the motion came on for hearing. Counsel for plaintiff called the court’s attention to the possibility of lack of jurisdiction to act, but announced he was prepared to oppose the motion. The motion was fully argued, submitted for decision and, on the same day, the court entered a formal order denying the motion without stating any reason therefor. Under these circum[323]stances we will be compelled to limit our review of the evidence to any issues properly presented by an appeal from the judgment.

The testimony of plaintiff shows that in Imperial County, in September, 1946, he agreed to purchase shares of stock in defendant company, a Nevada corporation, prior to the actual date of its incorporation; that he was not one of its original incorporators; that on October 14, 1946, he was issued a certificate of stock for 2,500 shares; that certain other stock was sold; that all of it was sold in violation of the Corporate Securities Act of this state, and particularly sections 25009, 25152, 25153, 25601 and 25700 of the Corporations Code, and that plaintiff had no knowledge of defendant’s violation of these sections until about February 21, 1951; that he never had any notice of any stockholders’ meetings; that when he addressed a registered letter to the company requesting information about it and its progress he received no reply; that he then instituted an investigation and found that it had no permit in California to sell such stock and had violated the sections above mentioned. Evidence of such violations was corroborated by certificates from the several public officials of this state authorized to issue such certificates.