This is a petition for a writ of mandate. Petitioner brought an action in the Superior Court of the County of Santa Barbara against Santa Barbara Cottage Hospital for damages for personal injuries. After trial and verdict, judgmеnt was entered in his favor on April 6, 1931. Defendant gave notice of intention to move for a new trial, which notice was filed on April 8, 1931. The motion was argued and submitted to the court, Honorable Pat R. Parker of the Superior Court of Mono County, sitting in the county of Santa Barbara by assignment of the chairman of the Judicial Council. After the argument said judge returned to Mono County. At 2:45 P. M. on June 8, 1931, hе sent a telegram to the county clerk of Santa Barbara in the form оf a signed order vacating the judgment and granting a new trial. The wire was recеived at 6 P. M. of that day and filed in the records of the case the next morning, June 9, 1931. A duplicate of said wire was also sent on June 8th and filed on June 9th. A written ordеr in the same form was made and signed by said judge on June 8, 1931, and *607 mailed to the clеrk, who received and filed it on June 11, 1931.
Petitioner contended that under the provisions of the Code of Civil Procedure, section 660, the order was too late, and on August 19, 1931, sought a writ of execution on the ground that the judgment had beсome final. Upon the refusal of respondent clerk to issue the writ, he made this application for a writ of mandate to compel its issuance.
Section 660 of said code provides in part as follows: “The pоwer of the court to pass on motion for a new trial shall expire sixty (60) dаys from and after service on the moving party of written notice of the entry of the judgment, or if such notice has not theretofore been served, thеn sixty (60) days after filing of the notice of intention to move for a new trial. If such mоtion is not determined within said sixty (60) days, the effect shall be a denial of the motiоn without further order of the court.”
In the instant case, no notice of entry of judgment was served. The sixty-day period must therefore be counted from April 8, 1931, thе date of filing of the notice of intention to move for a new trial. Excluding that day, the sixtieth day thereafter fell on June 7, 1931, a Sunday. Judge Parker’s order was made on Monday, June 8th, the sixty-first day, and was filed in the records of the case оn Tuesday, June 9th, the sixty-second, day. The ordinary rule for computing the time in which an act required by law must be performed is to
exclude
the first day and
include
the last day, unless the last day falls uрon a holiday, in which case the last day is also excluded. (Code Civ. Proс., sec. 12; Civ. Code, sec. 10; Pol. Code, sec. 12.) However, it has been repeatedly declared by the courts of this state that the provisions of the statute governing new trials constitute an exception to the general rule, and that the power of the court to pass upon a motion for new trial, if not exercised within the specified statutory period, is lost even though the last day be a holiday.
(Holquin
v.
Allison,
It appears, thereforе, that the order granting a new trial was made after the court had lost the рower to do so, and that the judgment is now final. Petitioner is entitled to levy execution in pursuance thereof, and the refusal of respondent clerk to issue the writ is without legal justification.
It is therefore ordered that a writ of mandate issue directing said respondent to issue a writ of execution as prayed, against the property of said defendant, Santa Barbara Cottage Hospital.