Caldwell v. Geldreich

• Decision Date: 17 November 1955
• Citation: 289 P.2d 832,137 Cal.App.2d 78
• Court: California Court of Appeals Court of Appeals
• Parties: John CALDWELL and John Caldwell, as guardian ad litem for Johnnie Leroy Caldwell, a minor, Plaintiffs and Respondents, v. Frank Joseph GELDREICH, Ardell Hynes, et al., Defendants and Appellants. Civ. 5085.

Page 832

289 P.2d 832

137 Cal.App.2d 78

John CALDWELL and John Caldwell, as guardian ad litem for Johnnie Leroy Caldwell, a minor, Plaintiffs and Respondents, v. Frank Joseph GELDREICH, Ardell Hynes, et al., Defendants and Appellants.

Civ. 5085.

District Court of Appeal, Fourth District, California.

Nov. 17, 1955.

John L. Roberts, Riverside, for appellants.

Harmon C. Brown, Riverside, for respondents.

GRIFFIN, Justice.

Plaintiff and respondent John Caldwell, individually and as guardian for his minor son Johnnie Leroy Caldwell, brought this action against defendants and appellants for claimed injury to them as a result of the collision of the son's bicycle with the defendants' automobile. Trial was had by jury resulting in a verdict for defendants. The series of events that followed were these:

On July 13, 1954, judgment for defendants was entered. Written notice of its entry was served on plaintiffs by mailing a copy thereof to plaintiffs' counsel in Riverside on July 26, 1954, according to an affidavit filed on July 27th. On August 4th, plaintiffs filed notice of intention to move for a new trial. On August 16th, the trial judge signed an order fixing September 17th as the time for hearing the motion. The motion was heard. On October 6, more than 60 days after the written notice of entry of judgment was served and more than 60 days after notice of intention to move for a new trial was filed, the trial court signed an order granting a new trial, but did not include insufficiency of the evidence as one of the grounds. The showing made by the affidavits in support of this motion indicated that there was additional or newly discovered evidence which plaintiff failed to produce at the trial.

Except as otherwise provided in section 12a of the Code of Civil Procedure, under section 660 thereof the power of the court to pass on a motion for new trial expires sixty days from and after service on the moving party of written notice of entry of the judgment, or if such notice has not theretofore been served, then sixty days after filing of the notice of intention to move for a new trial. If such motion is not determined within said period of sixty days, or within said period as thus extended, the effect shall be a denial of the motion without out further order of the court.

Apparently, from the present state of the record on appeal, the order attempting to grant a new trial, at the time here indicated, was beyond the court's jurisdiction and ineffective. Dolan v. Superior Court, 47 Cal.App. 235, 190 P. 469; Schomer v. R. L. Craig Co., 137 Cal.App. 620, 31 P.2d 396.

Confronted with this dilemma plaintiffs have belatedly, after the submission of the case on appeal, moved this court to have the record augmented, asked that certain portions of it be expunged, and to substitute a claimed minute entry of the trial court granting the motion for new trial on October 4, 1954, in order to establish the trial court's right to grant the new trial. The request is that they be allowed to present to this court, upon affidavit or otherwise, their claim that in fact no notice of entry of judgment was received by or on behalf of the plaintiffs. They also aver that the notice mailed, in any event was defective in form, etc., and consequently the time for determination of the motion was sixty days from the date of filing the notice of motion for such new trial. For this claimed reason they seek to expunge from the record the notice of entry of judgment and affidavit of mailing contained in the clerk's supplemental transcript.

There is positive showing by affidavit of defendants that notice of entry of judgment was mailed to counsel for plaintiffs on July 26, 1954. The effect of plaintiffs' counsel's affidavit is that he searched the files of his office and found no notice of entry of judgment in the above-entitled case therein, and to the best of his knowledge and belief no such notice was ever received by him; that he made no inspection of the files in the county clerk's office and had no knowledge of the claimed service until he was served with a copy of such notice and affidavit of mailing to be used in a supplemental transcript on appeal in May, 1955. He alleged that after arguing the motion for new trial on October 1st, he received a card from the clerk of the court through the mail post-marked 'October 4, 1954--5:30 p. m.' reciting: 'Caldwell v. Geldreich--Motion for New Trial--Motion granted'; that thereupon he prepared and forwarded to the court for signature a formal order granting the new trial, and that the judge, instead of dating it October 4th, dated it October 6th, and signed it on that date; that due to illness and press of business he did not seek an early hearing on the motion for new trial. He did obtain from defendants' counsel a stipulation extending time to file affidavits in support of the motion for new trial.

Assuming that the motion here pending was granted by us, we would be immediately confronted with two opposing affidavits. We would necessarily be inclined to believe that such a notice was in fact mailed to counsel for plaintiff as indicated therein. Since counsel for plaintiffs stated in his affidavit that he did not have a memory of receiving such a notice, it might be suggested that the notice was lost in the mail or misplaced in his office and was not brought to his attention. These facts alone would not support a finding that defendants' affidavit of mailing was false or fraudulent. McKeon v. Sambrano, 200 Cal. 739, 255 P. 178. It does not appear from a reading of sections 1012 and 1013 of the Code of Civil Procedure that the burden is upon the sender to show that the notice was actually received by the addressee. In Traders Credit Corporation v. Superior Court, 111 Cal.App. 663, 666, 296 P. 99, it was held that where service is made by mail, in cases permitted by these sections, such service is declared to be...