Smith v. Superior Court

In this opinion, petitioner will be referred to as defendant, and the real party in interest as plaintiff.

In a jury trial below, plaintiff was awarded a judgment of $2,100 in an action for damages for personal injuries. Neither party moved for a new trial within the 15-day period allowed for such motion. (Code Civ. Proc., §§ 659, 663a.)

Because defendant had made an offer before trial to allow judgment to be taken against her in the amount of $4,000, she moved to tax certain costs claimed by plaintiff. (See § 998.) At the hearing on this motion, the court announced, without prior notice to either party, that it intended to grant a new trial in the action. The announcement was made more than 15 days after the notice of entiy of judgment was mailed. The order granting a new trial having been filed, defendant seeks a writ of mandate commanding the court to set it aside. We conclude that the court was without jurisdiction to make the order, that the order is void and that a writ of mandate should issue as prayed for.

It is important to note at the outset of our discussion that the order here at issue is not one granting a judgment notwithstanding the verdict; nor is it an…