JOHN A. CLASSEN and LENA CLASSEN, his Wife, Respondents, v. H. G. THOMAS et al., Appellants, 164 Cal. 196

THE COURT. This is a motion by appellants for an order allowing them to file as a part of the record on appeal, what they claim is a certified copy of the order from which their appeal is taken, which is the order granting a new trial in the above entitled action. The record on appeal does contain a copy of an order made March 25, 1912, granting a new trial, as the same was entered on the minutes of the court, and the order as so entered was simply a general order granting a new trial, without the statement of any reason therefor, or the specification of the grounds upon which the same was based.

The paper sought to be filed here as a copy of the order granting a new trial is obviously merely a copy of the signed opinion filed in the lower court by the trial judge in determining the motion for a new trial.

It states at considerable length the reasons of the learned judge for his conclusion that a new trial should be granted and ends with the words “The motion for a new trial will be granted.” It is admitted that subsequent to the making of the minute entry of the order granting a new trial, a motion was made in the lower court for the correction of the same so that it would show that the new trial was not granted on the ground of insufficiency of evidence, and that this motion was denied.

It is conceded, as it must be under the decisions, that a written opinion of the trial judge filed in determining a motion for a new trial constitutes no part of the record on appeal and cannot operate to limit the effect of the order as actually made. Any limitation of the grounds upon which the order is made must, to be effectual, be specified in the order itself. We are satisfied that it must be held, under the decisions, that the paper signed and filed by the trial judge was simply a written opinion, and in no sense an order granting a new trial. In both Newman v. Overland Pac. Ry.

Co., 132 Cal. 73, [64 Pac. 110], and Ben Lomond Wine Co. v.

Sladky, 141 Cal. 619, [75 Pac. 332], the paper signed and filed by the judge purported to order a new trial, the language in the former of these cases being “The motion for a new trial is granted.” In such case it was held that where there is an order granting a new trial entered upon the minutes of the court, and also an opinion filed showing the reasons for the granting of the motion, and concluding with the words “The motion for a new trial is granted,” the order entered in the minutes is the only record of the court’s action, and is to be measured by its terms, and not by the reasons which the court may give for it. (See, also, Weisser v.

Southern Pacific Ry. Co., 148 Cal. 426, 7 Ann. Cas. 636, 83 Pac. 439].) The motion is denied. Beatty, C. J., does not participate in the foregoing decision.