Hovey v. Thorp

121 P. 303, 17 Cal. App. 677, 1911 Cal. App. LEXIS 205

• Court: California Court of Appeal
• Decided: December 18, 1911
• Docket: Civ. No. 1022.
• Status: Published

Opinion

ALLEN, P. J.

This is an appeal from an order of the superior court of Los Angeles county granting a new trial. Appellant’s sole contention is that the order granting a new trial was made without an application therefor by respondent. We see no merit in this proposition. The bill of exceptions shows the notice of intention and the grounds therefor; that the cause came on for hearing and that counsel for both parties were present; that the cause was submitted, and thereafter the court granted the motion and ordered a new trial. The record discloses that nothing remained for hearing but this motion; that the cause which came on for hearing was such motion, and the order was in connection therewith. The grounds for the motion sufficiently -appear from the bill of exceptions. A case is not presented where the notice of motion and the grounds therefor cannot be considered on account of the failure to incorporate the same in a bill of exceptions. (Williams v. Hawley, 144 Cal. 100, [77 Pac. 762].) The application for new trial and the grounds therefor sufficiently appear from the bill of exceptions, without considering the order of the trial court made pending the appeal and directed to be entered nunc pro tunc.

Order affirmed.

James, J., and Shaw, J., concurred.