Hart v. Burnett

California Supreme Court July 1, 1858

Hart v. Burnett, 10 Cal. 64 (Cal. 1858)

1858 Cal. LEXIS 188

Terry

Opinion of the Court

Terry, C. J., delivered the opinion of the Court

Field, J., concurring.

This is an appeal from an order of the Fourth.District Court, vacating an order rendered in the late Superior Court, denying a motion for a new trial.

It appears that the order of the Superior Court was entered on the last day of the term, and the day before that on which, by the act of 1857, the Superior Court went out of existence.

Counsel for appellant contends that after the lapse of the term, the Superior Court would have no jurisdiction to disturb the order, and the Fourth District Court, its successor, can have no more over the order than the Court.

*66The answer to this is, that the order granting a stay of proceedings had the effect of extending the jurisdiction of the Court, and the application to the Fourth District Court was made within the term during which proceedings were stayed. The Fourth District Court having jurisdiction, there is no doubt of the correctness of its order. At the time when the order denying a new trial was entered in the Superior Court, there was no statement settled, or on file. It was therefore erroneous, under the decision of this Court in Hill v. White, (2 Cal., 307,) and was properly vacated.

Judgment affirmed.

Reference

Full Case Name: HART v. BURNETT
Status: Published
Syllabus: In an action pending in the Superior Court of the City of San Francisco, plaintiff had verdict and judgment. Defendant filed a statement to he used on motion for a new trial. Plaintiff filed and served certain amendments to the statement, but gave no notice within two days of the settlement of statement before the Judge. The Court made an order, directing the motion for a new trial to be heard on the twenty-ninth day of April, 1857. On that day, the Court adjourned the hearing of the motion to the thirtieth, which was the last day of the existence of that Court. On that day, a motion for a new trial was denied. On the next day, papers and records of said Court were transferred to the Fourth District Court. On the twenty-seventh day of May, 1857, Fourth District Court made an order for the plaintiff to show cause why the order of the Superior Court denying a new trial should not be set aside, and on the day fixed to show cause why, District Court set aside said order of the Superior Court: Meld, that the order of Superior Court granting a stay of proceedings had the effect of extending the jurisdiction of the Court, and that District Court had the right to make the order. An order denying a motion for a new trial, when there is no statement settled on file, is erroneous.