Lee v. Superior Court In and For Placer County
| Decision Date | 06 October 1961 |
| Citation | 16 Cal.Rptr. 268,196 Cal.App.2d 161 |
| Court | California Court of Appeals Court of Appeals |
| Parties | Howard LEE, Petitioner, v. SUPERIOR COURT of the State of California, IN AND FOR the COUNTY OF PLACER, Respondent. Civ. 10331. . California |
Fitzwilliam, Memering & McDonald, Sacramento, for petitioner.
F. L. Sinclair, Roseville, for real party in interest.
This is a proceeding in prohibition. La Vanche Howard, as Administratrix of the Estate of Gerald Howard, Deceased, in behalf of herself as surviving widow and in behalf of minor children of said deceased, began an action in respondent Superior Court against Howard Lee and Secow Ung Lee to recover damages for negligently causing the death of said decedent. In the complaint she charged that decedent's death was proximately caused by the negligence of Howard Lee in the driving of an automobile owned by his father, Seow Ung Lee; that Howard was driving the car within the scope of his duties as an agent for his father; and that the father had been independently negligent in entrusting the driving of the vehicle to him.
Both defendants answered, denying negligence on the part of Howard, denying further that while driving the vehicle he acted as the agent of his father; and Seow Ung Lee denied the charges of negligent entrustment. When the case was called for trial Howard admitted liability. The trial jury brought in a general verdict against both defendants and fixed the damages for the death of decedent at $57,000.
Howard neither began proceedings for a new trial nor appealed from the judgment. Seow Ung Lee, however, moved for a new trial on all the statutory grounds. His notice of intention was addressed to La Vanche Howard, as Administratrix of the Estate of Gerald Howard, Deceased, and to her attorneys. The notice of intention was neither addressed to Howard Lee nor to his attorney, nor was service of notice of intention made upon Howard or his attorney. During the proceedings for new trial the clerk of respondent court notified Howard's attorney of the date set by the court for hearing the motion, but he ignored the notice and neither Howard nor his attorney participated in the new trial proceedings.
Respondent court entered an order granting a new trial as to both defendants as to all issues, and thereafter gave notice of pretrial procedures for the retrial. Thereupon Howard applied to this court for a writ of prohibition and the court issued an alternative writ. Before it could be heard, all parties, both plaintiff and defendants, appealed from the order granting the new trial.
Howard was not a party to the new trial proceedings and the respondent court was without jurisdiction to enter any order as against him.
In civil cases Section 659 of the Code of Civil Procedure requires that the party intending to move for a new trial must file and serve on adverse parties his notice of intention to move. If this is not done the right to move for a new trial as to those not served is lost. As to them the trial court has no jurisdiction to grant the motion since jurisdiction of the parties, other than the moving party, is obtained only by service on them of the notice. 36 Cal.Jur.2d secs. 130-131, pp. 328-331; Bell v....
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