PAULA ROMERO De GAZE v. S. J. LYNCH, JEROME PORTER, S. L. EAMES, WILLIAM H. PERRY, J. F. BURNS, JOHN KING, and S. H. MOTT, 42 Cal. 362

By the Court, Sprague, J.: This is an appeal by the plaintiff from an order granting defendants’ motion for a new trial, and also from an order denying plaintiff’s motion to vacate and set aside such order granting a new trial, The record presented by the transcript discloses substantially the following state of facts: The action was ejectment, and the verdict and judgment were in favor of the plaintiff, and against the defendants.

In due time three of the defendants gave notice of their intention to move for a new trial, and subsequently prepared and filed their statement on such motion, which statement was certified by the Judge, as settled by him and correct, on the 12th day of May, 1870.

This statement, as settled and certified by the Judge, contains a very full specification of the grounds upon which the moving party will rely in support of the motion, among which is specified various errors of the Court in giving and refusing instructions to the jury, and in admitting certain oral evidence and various written documents against objections of defendants, as also, that the evidence was insufficient to support the verdict, with particular specification upon this ground.

But the statement, as settled and certified by the Judge, does not contain the instructions given or refused by the Court, to which exceptions were taken by defendants, nor any of the documentary evidence given on the trial against objections of defendants, which were essential and necessary to illustrate and explain the particular points specified in the statement as the grounds relied upon in support of the motion. Only a reference to such documentary evidence and instructions is contained in that statement, thus: “ Deed from Foster, administrator of the estate of U. M.

Pryor, to plaintiff". (Here insert Exhibit A.) (Here insert instructions of plaintiff),” etc.; and the Clerk of the Court, in his certificate to the transcript, certifies that the statement “is the only settled or authenticated statement on motion for a new trial ” in the case. This statement appears to have been settled, and certified by the Judge as correct, on the 12th day of May, 1870.

On the following day, thirteenth of May, defendants duly notified the plaintiff that upon his statement on file, and upon the files, papers, and records in the action, they would move the Court, at the Court-room thereof, on the 16th day of May, 1870, at the opening of the Court on that day, or as soon thereafter as counsel could be heard, for a new trial in said cause, so far as the same relates to defendants Mott, King, and Burns.

The record discloses no further action upon the motion until the 2d day of June, 1870, when, in open Court, a motion for a new trial in another case was overruled by the Court, whereupon the counsel for plaintiff" in this case called up the motion for a new trial therein, and stated that this motion was of similar character to that just decided; he supposed it would be useless to argue the same; but the counsel for the defendants objected to a submission of the motion without argument, “when the Court stated substantially, that it did not see how it could consistently grant a new trial in this case,” whereupon counsel for defendants insisted upon being heard on the motion, to which the Court replied, that counsel could take their own course.

So argument was, however, then had, and nothing further was done by either party to the motion, but the Court, without notice to either party, and without any formal or actual submission of the motion to the Court for decision, on the ninth day of June, made and caused to be entered Ms order granting a new trial, which fact was not brought to the knowledge of plaintiff until about six weeks thereafter; whereupon plaintiff’s counsel, upon his own affidavit and certain minutes of the Court, moved the Court to set aside and vacate its order of June ninth, granting defendants’ motion for a new trial, substantially on the ground that the motion for a new trial had never been submitted to the Court for its decision; that plaintiff had never had any notice of any such submission, and had not had an opportunity of being heard in opposition to the motion.

Upon the hearing of this motion to set aside and vacate, on the fifth of August the Court denied the same. From this exhibit of the record it is apparent that the order of the Court below granting defendant’s motion for a new trial was prematurely and improvidently made. The statement on motion for a new trial had not been engrossed. It was but a skeleton statement, with a simple reference to exhibits used in evidence on the trial, and instructions given and refused by the Court, which were deemed essential and necessary to illustrate the grounds of the motion specified in the statement.

The motion for a new trial was never actually or by fair implication submitted to the Court for its decision. When the motion was called up by plaintiff, on the second day of June, and the Court had intimated that the same must be overruled, plaintiff manifested a willingness to submit it without argument, but defendants declined, and insisted upon being heard in support of the motion.

Ho argument was then had, nor was the motion then submitted, and for the Court subsequently, on a change of its views in relation to the merits of the motion, to grant the same without notice to plaintiff, operated a surprise upon her, and practically denied her the privilege of being heard on the motion. (Morris v. De Celis, 41 Cal. 331.) Orders reversed, and cause remanded for further proceedings on the motion for a new trial.