Brennan v. Spanach

McCABE, P. J. On April 13, 1964, defendant Walter Styffe filed a complaint in the Municipal Court of the Ontario Judicial District, naming plaintiffs herein as defendants. The action was to foreclose a mechanic’s lien against property owned by plaintiffs. Subsequently, plaintiffs filed an action in the Superior Court, San Bernardino County, claiming that defendants herein had breached a construction contract. The two actions were consolidated for trial.

At trial, the motion for a nonsuit made by defendants [plaintiffs herein] in the mechanic’s lien case was granted. No appeal was taken from the judgment subsequently entered.

The action in the superior court wherein the question of whether defendants had breached their construction contract was then submitted to the jury and a verdict was rendered in plaintiffs’ favor with damages found to be $1,200.

Judgment was entered on May 11, 1967, and on May 12, 1967, notice of entry thereof was mailed by the clerk of the court. On May 18, 1967, defendants served notices of motions for a new trial on the ground of insufficiency of the evidence to justify the verdict, and for judgment notwithstanding the verdict, which documents were filed by the county clerk on May 22,1967.

Following two continuances, the motions were argued before the trial judge on July 14, 1967, and the matters were then submitted. The court’s order of that date was as follows:

“As to the Motion for New Trial heretofore submitted, the Court now makes the following ruling and Order:

“The Court is without jurisdiction to rule on the Motion for New Trial. The 60 days expired on July 11, 1967. Stipulation cannot extend time.

[352]"Similarly on the Motion for Judgment Notwithstanding Verdict. Sec. 629, C.C.P.”

On July 17, 1967, the trial judge entered a new order attempting to vacate the prior order and granting defendants’ motion for a new trial. The order of July 17 provided:

"Upon reading the case of Alhambra Cons. Mines v. Alhambra Shumway Mines, 239 C.A.2d 590-597 [49 Cal.Rptr. 38], wherein it is held that service of Notice of Entry of Judgment, to be effective, must be given by a party, and it appearing that no Notice of Entry of Judgment was given by a party in this case, the Order heretofore made indicating lack of jurisdiction is vacated, and a new trial is granted on the ground of insufficiency of the evidence to justify the verdict. ’ ’