178 P. 722 | Cal. Ct. App. | 1918
Action for damages for personal injuries suffered by plaintiff, Mattie Bidwell, wife of S. J. Bidwell, coplaintiff, and for consequential injury flowing therefrom to the latter.
The action was tried by a jury and resulted in a verdict for plaintiffs, which was rendered March 11, 1916. The defendant made a motion for a new trial. The order granting it was filed June 13, 1916. This order was signed by the judge of the trial court on the previous day, and was on said day delivered by him to the shorthand reporter of the court *331 with instructions to file the same on the following day, which was done. Thereafter plaintiffs moved to set aside said order upon the ground that it was void upon its face, and that the court had no jurisdiction to make the same, for the reason that it was made more than three months after the entry of the verdict. This motion was granted, and defendant appeals.
The appellant contends that the trial court had no power to set aside its order granting a new trial, and that the remedy of the party aggrieved was by appeal, citing numerous authorities in support of the principle. Respondents admit the validity of the authorities cited, but contend that an exception to the rule therein announced exists in the case of an order void upon its face. (People v. Greene,
That section provides:
"The time in which any act provided by law is to be done is computed by excluding the first day and including the last, unless the last day is a holiday, and then it is also excluded."
The law relative to the duty and power of the court to pass upon a motion for a new trial is found in section
"The motion for a new trial must be heard at the earliest practicable time. . . . The hearing and disposition of the motion . . . shall have precedence over all other matters except criminal cases, probate matters and cases actually on trial, and it shall be the duty of the court to determine the same at the earliest possible moment. The power of the court to pass on motion for new trial shall expire within three months after *332 the verdict of the jury or service on the moving party of notice of the decision of the court. If such motion is not determined within said three months, the effect shall be a denial of the motion without further order of the court.
A careful consideration of the language of these two sections leads us to the conclusion that section
What we have said thus far is addressed to the proposition advanced by appellant that a decision of the motion for a new *333 trial was in time if made on June 12th; but it appears from the bill of exceptions that this decision was in writing, and although signed by the judge of the trial court on June 12th, was not filed on that day, but was left by the judge in charge of the shorthand reporter of the court, with instructions to file it on the following day, June 13th — a date admittedly beyond the jurisdictional period.
It is apparent that during the time that the written order was in the possession of the shorthand reporter it was under the control of the judge, and that up to the time of its actual filing no judicial act with relation to the decision of the motion for a new trial had been performed. The decision thereon at most was a matter within the breast of the judge. This is not a case where the omission to file the order on the 12th was by inadvertence or in disregard of the court's instructions. The facts show that if the reporter had filed the order on the 12th, he would have violated the directions given to him. In the matter of his possession of this order, and his assumed obligation to file it, the reporter was not discharging any duty placed upon him by law, and was in no different situation than any other messenger who might have been selected by the judge. We think the conclusion is not to be avoided that the judicial action of the court upon the motion for a new trial was not taken until June 13, 1916, a point of time admittedly too late.
The respondents raise another point, namely, that the bill of exceptions upon which the present appeal is based was not presented to the judge for settlement within the time prescribed by law, and that this court, cannot, therefore, consider it. In view of the conclusion we have reached upon the questions discussed it will not be necessary to formally consider this point. Although it may be meritorious we have in effect overruled it by considering the appeal upon the merits.
For the reasons heretofore given the order is affirmed.
Kerrigan, J., and Beasly, J., pro tem., concurred.
A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on February 27, 1919.
All the Justices concurred. *334