Bauer v. Helene Curtis Industries, Inc.

• Decision Date: 27 March 1953
• Citation: Bauer v. Helene Curtis Industries, Inc., 117 Cal.App.2d 66, 254 P.2d 931 (Cal. App. 1953)
• Court: California Court of Appeals
• Parties: BAUER et al. v. HELENE CURTIS INDUSTRIES, Inc. Civ. 15381.

Page 931

254 P.2d 931

117 Cal.App.2d 66

BAUER et al. v.HELENE CURTIS INDUSTRIES, Inc.

Civ. 15381.

District Court of Appeal, First District, Division 2, California.

March 27, 1953.

Hearing Denied May 21, 1953.

Shapro & Rothschild and Raymond T. Anixter, San Francisco, for appellant.

Mark M. Coleman, San Francisco, for respondents.

NOURSE, Presiding Justice.

Plaintiffs sued to recover the purchase price of certain merchandise delivered to them as distributors under contract with defendants who were the manufacturers.The basis of the action was a purported breach of warranty of the merchandise sold.In a trial before the court sitting without a jury judgment was entered for the defendant.In due time the plaintiffs moved for a new trial specifying eight grounds.The only ground urged and determined was that numbered 6 which read, 'Insufficiency of the evidence to justify the verdict.'The order granting a new trial specified as a ground therefor, 'insufficiency of the evidence to justify the decision.'Because of the use of the word 'verdict' in the notice of motion and the use of the word 'decision' in the order, the appellant contends first, that the trial court was without jurisdiction to hear the motion since such power is conferred by section 657, subd. 6, Code Civ.Proc., to a case of 'Insufficiency of the evidence to justify the verdict or other decision * * *' and second, because in granting the motion on the specified ground 'Insufficiency of the evidence to justify the * * * decision'the court relied on a ground not specified in the notice of motion.To restate the highly technical argument, it is that the trial court had jurisdiction to grant a new trial only subject to a notice specifying insufficiency of the evidence to 'justify the verdict or other decision' and since the notice did not specify the 'decision' there was no jurisdiction to base the order on that ground.

Appellant relies on the case of Martin v. Matfield, 49 Cal. 42, which was followed in Sawyer v. Sargent, 65 Cal. 259, 3 P. 872, both holding that when the notice of motion used the word 'judgment' instead of the word 'decision'the court was without jurisdiction to grant a new trial.Both cases were written before the days of open plumbing and are no longer authority.Though we do not find that the Martin case has been expressly overruled such is not the case as to Sawyer v. Sargent which was expressly overruled in Locke v. Moulton, 96 Cal. 21, 30 P. 957;Hoover v. Wolfe, 167 Cal. 337, 139 P. 794, and rejected in O'Connell v. Main, etc., Hotel Co., 90 Cal. 515, 27 P. 373.Adopting the ancient maxim (which is still sound under modern plumbing) that 'de minimis non curat lex' the later decisions hold that if the notice of motion distinctly informs that a new trial will be asked for it is sufficient.The Hoover case went a step further where it is said, 167 Cal. at pages 339, 340, 139 P. at page 795: 'In the first place, the notice stated that motion for a new trial would be made.This is all that is required by the statute.Bauder v. Tyrrel, 59 Cal. 99;Heinlen v. Heilbron, 71 Cal. 557, 12 P. 673.The statement that the moving party would ask to have the judgment vacated was unnecessary, and may be treated as surplusage.Locke v. Moulton[96 Cal. 21, 30 P. 957].Besides, the grounds of motion were such as are applicable only to a motion for new trial, and the statement of such grounds sufficiently apprised the adverse party of the nature of the relief to be asked.'

Though the language quoted may be too broad in view of the amendment to section 659, Code Civ.Proc. requiring the notice to designate the grounds upon which the motion will be made, the...