Messner

Petitioner obtained a judgment for damages after verdict by a jury in an action for malicious prosecution, and subsequently the trial court granted a new trial. Petitioner now seeks, by this proceeding in mandamus, to compel the issuance of an execution, claiming that the order granting the new trial was not made within the period of time allowed therefor by section 660' of the Code of Civil Procedure, and for that reason- is void.

The verdict was rendered on February 28, 1929, and on April 29, 1929, the court made an order to the effect that if petitioner remitted forthwith in writing ten thousand dollars of the damages awarded by the jury the motion for a new trial would be denied; otherwise it would be granted. Petitioner refused to comply with the condition thus imposed and consequently the order granting the new trial became effective. At the time these proceedings took place the concluding paragraph of said section 660 read as follows: “The power of the court to pass on motion for a new trial shall expire within two months after the verdict of the jury or service on the moving party of notice of entry of the judgment. If such motion is not determined within two months the…