14 Cal. App. 2d 565 | Cal. Ct. App. | 1936
On June 26, 1935, pursuant to a motion therefor, made on all grounds set up in the statute, section 657 of the Code of Civil Procedure, the trial court filed a “Memorandum in re Motion for New Trial” (hereinafter called “first order”) which, after calling attention to a certain instruction which the court stated it was persuaded had “misdirected” the jury, and wherein there was a discussion of certain phases of the evidence, concluded as follows: “For this reason a new trial will be granted.”
On the next day the trial court instructed the clerk to enter and there was entered a minute order (hereinafter called “second order”), as follows: “Motion by plaintiff for new trial heretofore submitted on June 14, 1935, is now by the Court granted upon the ground of the insufficiency of the evidence to justify the verdict and upon errors in law occurring at the trial and excepted to by the plaintiff. Memo in re motion filed.”
If appellant is correct in his contention that the first order is the order, then it would have been essential to have taken an appeal from the first order as well as from the second order. (Robbins v. Jenkins, 9 Cal. App. (2d) 580 [50 Pac. (2d) 826]; Gulf Mail S. S. Co. v. W. A. Hammond S. S. Co., 67 Cal. App. 420 [227 Pac. 938]; and Id., 67 Cal. App. 424 [227 Pac. 940]; Livesay v. Deibert, 3 Cal. App. (2d) 140 [39 Pac. (2d) 466].) Assuming, further, that appellant is correct in his contention that the first order is the order, then an ambiguity was created in the first order by the second order, and it was appellant’s duty to take appropriate proceedings in the trial court for an amendment or correction of the first order or the second order or both, so that an order could have been entered to speak the truth. From such a corrected order an appeal might have been taken which would have attacked the entire situation. (Wutchumna Water Co. v. Superior Court, 215 Cal. 734, 739 [12 Pac. (2d) 1033].) On the merits, however, it is clear to us that the first order was never intended by the trial court to be the order, and in a situation such as that which exists in the case at bar, the intention of the trial court is decisive of the character of the first order. In the Wutchumna ease, supra, the court says, at page 738: “Whether remarks made at the conclusion of a hearing are a rendition of the court’s decision, on the matter before it, or a mere announcement or memorandum of the decision which the court contemplates making by signed order, depends on the intention of the court. (14 Cal. Jur. 856; 1 Freeman on Judgments, p. 81.) ”
The record on appeal shows that the trial court instructed the clerk to enter the second order. This, in itself, is conclusive evidence that the trial judge did not consider the
The record shows a substantial conflict in the evidence which we find unnecessary to review, particularly in view of the fact that the first order affirmatively shows, in spite of its concluding language, that the trial judge specifically had in mind the state of the evidence. (Gulf Mail S. S. Co. v. W. A. Hammond S. S. Co., supra, at p. 423.) Said first order reads in part as follows: “Furthermore, the defendant himself testified that for half a mile he saw the wagon load of hay and the plaintiff’s Ford car. He knew that she was approaching the wagon and he knew that the wagon was going at such a slow pace that a reasonable person could not expect the plaintiff to remain behind the wagon. Also, when he was within seventy-five feet of plaintiff’s car and he saw that she was pulling into the left-hand side of the road, he
The record affirmatively shows that there was not an abuse of discretion.
The order appealed from is therefore affirmed.
Houser, P. J., and York, J., concurred.