Deschamps v. Independent Cab Co., 14108

• Decision Date: 12 November 1949
• Docket Number: No. 14108,14108
• Citation: 94 Cal.App.2d 127,210 P.2d 897
• Court: California Court of Appeals Court of Appeals
• Parties: DESCHAMPS v. INDEPENDENT CAB CO. et al.

Page 897

210 P.2d 897

94 Cal.App.2d 127

DESCHAMPS v. INDEPENDENT CAB CO. et al.

No. 14108.

District Court of Appeal, First District, Division 1, California.

Nov. 12, 1949.

Hearing Denied Dec. 13, 1949.

Dana, Bledsoe & Smith, San Francisco, for appellant.

Hoge, Pelton & Gunther and Leo V. Killion, San Francisco, for Clark and Independent Cab Co.

Melvin M. Belli, San Francisco, for respondent.

BRAY, Justice.

The court in its opinion stated that the motions for new trial had not been made. This statement is incorrect in view of section 659 of the Code of Civil Procedure which provides that a notice of intention to move for a new trial 'shall be deemed to be a motion for a new trial on all the grounds stated in the notice.' This incorrect statement, however, does not affect the correctness of our decision. The motions were never submitted, nor was any opportunity given the parties to be heard on them, either orally or otherwise. Moreover, as pointed out in our opinion, the order is invalid upon another ground. No affidavits had been filed as required by law, and yet the court purported to grant the new trial upon 'all other legal grounds' in addition to the ground of insufficiency of the evidence. This the court had no right to do. Hence its action on August 9 in setting aside the July 9 order was not only proper but necessary.

In the opinion, a formal order was not made concerning the plaintiff's motion to dismiss the Vallerga appeals. Such motion is hereby denied. The petitions for rehearing, by respondents Robert Deschamps and Don Clark, et al., are denied.

PETERS, P. J., and WARD, J., concur.

Hearing denied; EDMONDS and SCHAUER, JJ., dissenting.