Majority
p. 677[Civ. No. 1022. Second Appellate District. December 18, 1911.] CLARA W. HOVEY, Respondent, v. C. I. THORP, Appellant.
Headnote
Appeal—Order Granting New Trial—Application for Order—Untenable Objection—Bill of Exceptions.—Upon appeal from an order granting a new trial, it is held that appellant’s objection that the order was made without an application therefor by the respondent is untenable, where the bill of exceptions upon such appeal shows the notice of intention and grounds of the motion, that the cause came on for hearing, with counsel for both parties present, and that the cause was submitted, and thereafter the court granted the motion and ordered a new trial.Id.—Order Nunc Pro Tunc Pending Appeal not Considered.—Since the record shows that nothing remained for hearing but the motion, that the cause which came on for hearing was the motion, and the order was in connection therewith, and the application for a new trial and the grounds therefor sufficiently appear in the record, it is unnecessary to consider an order of the trial court made pending the appeal, and directed to be entered nunc pro tunc.
APPEAL from an order of the Superior Court of Los Angeles County granting a new trial. Leon P. Moss, Judge.
The facts are stated in the opinion of the court.
Roland G. Swaffield, for Appellant.
Geo. A. Skinner, and E. S. Williams, for Respondent.
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
p. 678
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.