157 P. 604 | Cal. | 1916
Lead Opinion
This is a proceeding in mandamus to compel respondents to hear and determine on its merits a motion for a new trial regularly made by petitioner in an action in said superior court, in which one Theo. C. Forrester is plaintiff and petitioner is defendant. The alleged ground of respondents' refusal to act is that its power to pass on said motion has expired by reason of the provisions of section
The case of Forrester against petitioner was tried with a jury and a verdict rendered in favor of Forrester for eight thousand five hundred dollars on June 29, 1915. Judgment was entered on said verdict on June 30, 1915. Within the time allowed by law and as extended by stipulation, viz., on July 19, 1915, petitioner duly served and filed notice of its intention to move for a new trial on various grounds, the notice stating that the motion would be made upon a bill of exceptions to be thereafter prepared and served. All this was in accord with the law as it then was. On August 27, 1915, petitioner appealed from the judgment. On November 8, 1915, the bill of exceptions was regularly signed, certified, and filed. The hearing of petitioner's motion for a new trial was then set for November 26, 1915, and was by consent of counsel postponed from time to time until March 15, 1916. On the day last named, respondents finally refused to hear and determine said motion on its merits.
Section
By an amendment to another section of our Code of Civil Procedure, also taking effect August 8, 1915, [Stats. 1915, p. 209], the right of appeal from an order denying a new trial was abolished. (Code Civ. Proc., sec. 963.) It has been held that as to the right of appeal from such an order it is the condition of the law at the time of the denial of the motion for new trial that controls, regardless of whether the proceeding for a new trial was initiated prior to or subsequent to the change in the law. (See Woodruff v. Colyear, ante, p. 440, [
The provision of section
This being the construction that must be given to the provision, we have no doubt that it should not be construed as applicable to proceedings on motion for new trial pending at the time it became operative. Pignaz v. Burnett,
Let a peremptory writ of mandate issue in accord with the prayer of the petition.
Concurrence Opinion
Rehearing denied.