Butler v. Schefers

FILES, P. J. In this action for personal injuries arising out of an automobile accident the jury returned a verdict in favor of plaintiff for $850, and on February 28, 1964, judgment was entered thereon. Plaintiff deemed this judgment insufficient and moved for a new trial upon the following grounds:

[331]‘‘ 1. Insufficiency of the evidence to justify the verdict;

1 ‘ 2. That the verdict is against the law. ’ ’

After hearing the motion the court made a minute order dated April 23, 1964, which contains this language: “Plaintiff’s motion for new trial is granted on the ground of insufficiency of the evidence to support the verdict and judgment in that the amount of damages awarded by the jury are inadequate, unless defendant shall, on or before May 1, 1964 file with the court his consent in writing that the court may make its order amending the judgment to increase the amount thereof from $850.00 to $1850.00. (See Mullin v. Kaiser etc. Hospitals, 206 Cal.App.2d 23 [23 Cal.Rptr. 410].)”

On April 30, 1964, defendant filed a document declaring that he consented to pay plaintiff $1,850 damages, plus costs, pursuant to the court’s order of April 23.

No order amending the judgment was made. Counsel inform us in their briefs that after the court made its order of April 23, 1964, it discovered that the order was erroneous under Dorsey v. Barba, 38 Cal.2d 350 [240 P.2d 604], which holds that it is improper to modify a judgment upward without plaintiff’s consent as a condition to denying plaintiff’s motion for a new trial.

Plaintiff thereupon gave notice of appeal from the judgment and from the minute order of April 23, 1964. The record on appeal consists only of a clerk’s transcript. There is nothing in this record to show that the judgment was erroneous in any respect. But neither party contends that this judgment remains in force. They agree that it was vacated by the order granting a new trial. Defendant’s brief informs us that he filed with the trial court and served on plaintiff’s counsel a notice of his consent to stipulate that there be a retrial on all issues. The sole contention made by plaintiff is that the order granting the new trial should be construed or modified so as to provide for a new trial on the issue of damages only.

There is nothing in the record on appeal to support the theory that the trial court granted or should have granted a new trial limited to the issue of damages. The notice of motion asks only for “a new trial” without suggesting any limitation. Although this form of motion would not have prevented the trial court from ordering a limited new trial (Garcia v. San Gabriel Ready Mixt, 173 Cal.App.2d 355 [343 P.2d 327] ; see Hamasaki v. Flotho, 39 Cal.2d 602, 611 [248 P.2d 910]) the form of the motion is of some relevance in construing the order made in response to it. (Cox v. Tyrone