Boarman v. Hinckley

The opinion of the court was delivered by

Reavis, J.

Action by plaintiff, respondent here, against defendant for damages for breach of contract. Yerdict of jury for defendant. Within two days after rendition of the verdict the plaintiff - filed and served on the defendant a motion for a new trial, specifying the grounds relied upon in the motion. The court, upon hearing the motion, granted a new trial, from which order the defendant appeals.

The first contention of appellant is that no notice of intention to move for a new trial was filed within two days after rendition of the verdict, as required by the statute (Code Proc., § 404), but the motion itself specifying the grounds assigned for a new trial was filed and served on the defendant within the time required by statute. The cases cited by appellant from California and Montana are inapplicable. In those cases, either no notice or motion was filed within the time required by statute, or else the specifications of tlie reasons relied on for asking a new trial were not stated. Tlie courts usually construe tlie form of a notice fairly. Tire motion for a new trial filed by plaintiff in this case fully advised tlie defendant of plaintiff’s intention to move for a new trial, and specified tlie grounds. The motion itself here fulfills tbe function of tlie notice required by tbe statute. Tbe power to grant a new trial by tbe court bearing the cause is one of discretion, and tbe statute making tbe order appealable has not changed tbe established principles controlling tbe granting or refusal of a new trial. Only abuse of such discretion will be reviewed. We perceive no abuse of its discretion by tbe superior court in tbe order made, and its order is affirmed.

Scott, G. J., and Anders, Dunbar and Gordon, JJ., concur.