Garcia

Plaintiffs Delores and Placida Garcia brought this action to recover for personal injuries sustained in an automobile collision allegedly caused by the negligence of defendant Antonio Lucido. Defendant Lucido answered, denying negligence on his part and alleging contributory negligence on the part of the driver Delores Garcia. After a trial by jury, verdict and judgment were for Placida Garcia against Lucido, and for Lucido against Delores Garcia. Plaintiff Delores Garcia then moved for and was granted a new trial on the ground of the insufficiency of the evidence to justify the verdict.

Lucido appeals from the said order, and Delores Garcia cross-appeals from the judgment for defendant Lucido.

Appellant contends that respondent’s notice of intention to move for a new trial was fatally defective because it failed to state whether such motion would be made upon affidavits or the minutes of the court, as required by Code of Civil Procedure, section 659. He argues that the right to *305 move for a new trial is statutory and must be pursued in the manner set out by the statute, and that where the mandatory provisions of section 659 are not complied with, the trial court is without…