Shepherd

The petitioners have applied for a writ of prohibition to restrain the respondent from proceeding with the retrial of a case, after motion for a new trial granted. The order purporting to grant the motion is regular on its face, but is shown by uncontroverted evidence to have been irregularly made and entered.

The petitioners were defendants in an action, brought in the court below, entitled Kahriman et al. v. Shepherd et al. (No. 23,376). Judgment was rendered in their favor. On the third day of January, 1921, as such defendants, they gave notic§ to the plaintiffs in the action of the entry of the judgment. Plaintiffs in the action thereupon interposed a motion for a new trial, which, after argument and submission, was taken under advisement by the trial court. By the terms of section 660 of the Code of Civil Procedure the period of limitation on the power of the court to determine the motion expired on Sunday, April 3d. Between 3 and 4 o’clock on Saturday afternoon, April- 2d, the trial judge telephoned from his residence to his courtroom clerk, who was then at his own home, to enter an order granting the motion for a new trial. This order was not entered by the clerk until the…