JUDGES--MOTION FOR NEW TRIAL--DEATH OF TRIAL JUDGE BEFORE HEARING ON MOTION FOR NEW TRIAL

Authors

Albert B. Perlin, Jr., University of Michigan Law SchoolFollow

Abstract

Judgment was entered upon a jury verdict for the plaintiff. Defendants thereupon filed their intention to move for a new trial, but before the motion could be heard the trial judge died and assignment was made for hearing before another judge of the same court. Section 661 of the California Code of Civil Procedure directed that, "The motion for new trial shall be heard and determined by the judge who presided at the trial; provided, however, that in case of the inability of such judge or if at the time noticed for hearing thereon he is absent from the county where the trial was had, the same shall be heard and determined by another judge of the same court." Plaintiff's objections to the jurisdiction of the court or of any judge thereof to hear and determine the motion for new trial were overruled, and an order was made granting a new trial. Upon the clerk's refusal to issue a writ of execution on the original judgment, plaintiff petitioned the district court of appeals for a writ of mandamus requiring the issuance of the writ. Held, demurrer to the petition overruled and a peremptory writ of mandamus to issue. Telefilm, Inc. v. Superior Court, (Cal. App. 2d Dist., Div. 2, 1948) 194 P. (2d) 542.

Recommended Citation

Albert B. Perlin, Jr., JUDGES--MOTION FOR NEW TRIAL--DEATH OF TRIAL JUDGE BEFORE HEARING ON MOTION FOR NEW TRIAL, 47 Mich. L. Rev. 282 (1948).
Available at: https://repository.law.umich.edu/mlr/vol47/iss2/18