74 P. 439 | Cal. | 1903
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *65 Seduction. The cause was tried by a jury, and plaintiff had the verdict assessing "the amount of damages at the sum of eight thousand two hundred and fifty dollars, as compensatory damages, and five thousand and fifty dollars as exemplary damages." Judgment was entered that plaintiff recover from defendant "the sum of thirteen thousand and three hundred dollars," and costs assessed, etc. Defendant moved for a new trial, and on hearing the motion the court, on May 4, 1901, "ordered that a new trial be granted, unless plaintiff, within ten days, in writing, remits all of the judgment in excess of $5,000, and if plaintiff shall remit the sum of $8,300 from the judgment within ten days, then and in that case the motion for a new trial will be denied." Plaintiff did not remit any part of the judgment, but on May 10, 1901, without waiting the ten days mentioned in the order, served notice of appeal from this order and now contends: 1. That the "trial court did not exercise a proper legal discretion in granting a new trial," on the terms stated; and 2. That the court had no jurisdiction to determine the motion, and the order is therefore void.
1. As to the second of these points, the first calling for attention, the jurisdiction of the court is challenged on two grounds: 1. The specifications of insufficiency of the evidence to justify the verdict are themselves insufficient, and are inapplicable where a new trial is sought on the ground of damages given through passion or prejudice; and 2. Because the court allowed the amendments to the proposed statement at the hearing of the motion after the statement had been settled and signed by the judge. The proposed statement *67
was settled and allowed and signed by the judge on February 27, 1901. On March 1, 1901, defendant, by his counsel, filed certain amendments to the proposed statement. These amendments are indorsed by the clerk: "Received for the judge who tried the cause this 6th day of February, 1901," and on the same day a copy was served on plaintiff's counsel and acknowledged by them. No objection to the proposed amendments was noted in the acknowledgment. On May 4, 1901, as shown by the minutes of the court, counsel for defendant "moved the court for an order granting leave to file amendments to statement on motion for new trial." Plaintiff objected "on the ground that plaintiff has had no notice of the motion. Objection overruled and motion granted. Plaintiff excepts." Defendant then moved for a new trial "on the grounds set forth in his statement on motion for a new trial and the amendments thereto." This motion was argued by respective counsel without further objection by plaintiff, and the court made the order already noticed. We have what purport to be the minutes of the court, made at the time the motion for a new trial was argued and passed upon. These minutes show that the proposed amendments were before the court at the time that motion was before it, and were then allowed, and they were referred to in the motion for a new trial, made at the same time the amendments were allowed. I think it sufficiently appears that the proposed amendments were considered by the court in making the order appealed from and the record made of the proceedings then had may be considered here. Appellant was not injured because not previously served with notice of the motion to amend the statement. She had actual notice of the proposed amendments by service of them upon her counsel two months before the motion. At the hearing of the motion she offered no amendments and did not object to the matter proposed to be added to the statement, but objected generally to any amendment. The specifications in the notice of the motion failed to state the rulings on certain questions and answers of witnesses duly objected to by defendant, but referred to them only by number. The amendments embodied the question, answer, objection, and ruling in each instance as shown by the record, and were in fact amendments of the specifications in the notice of the motion. The amendments *68
were proper under section
Upon the other objection we think the specifications without the amendments clearly fall within the rule laid down in AmericanType Founders' Co. v. Packer,
2. The remaining point relied on by appellant is, that the court had no authority to make the order reducing the judgment, and the discussion of the point by appellant proceeds upon the erroneous assumption that the trial court made the order on the ground of passion or prejudice having influenced the verdict. The motion was made on most of the statutory grounds, including insufficiency of the evidence to justify the *69
verdict, and that the verdict is against law, but did not include subdivision 5 of section
3. The question of the sufficiency of the complaint cannot be considered on motion for new trial where there is no appeal from the judgment. (Swift v. Occidental Mining Co., (Cal.) 70 P. 470.) Plaintiff appealed from the order before the ten days had expired, during which time she was given an option to remit a part of the judgment, and by so doing the order would have stood denied. She now asks that if the judgment be affirmed "that this court designate and fix in its judgment and decision a reasonable time within which plaintiff may, if she shall desire so to do, make such remission as specified in said order of the said superior court." The appeal, in effect, was a refusal by plaintiff to remit any portion of the judgment or abide by the terms of the order, and was an exercise of her option.
We do not think she should be permitted to appeal here on the assumption that she had all to gain and nothing to lose by the course taken.
It is advised that the order be affirmed.
Haynes, C., and Gray, C., concurred.
For the reasons given in the foregoing opinion the order appealed from is affirmed.
McFarland, J., Lorigan, J., Henshaw, J. *71