Sternbeck v. Valinder

LYDIA STERNBECK, Respondent, v. DAVID VALINDER, Appellant.

[Civ. No. 12316. Second Appellate District, Division Two. December 29, 1939.]

JOE SNYDER et al., Respondents, v. DAVID VALINDER, Appellant.

COUNSEL

Sigurd E. Murphy and Bernard E. Allard for Appellant.

Victor C. Rose and Peter T. Rice for Respondents.

OPINION

McComb, J.

Respondents move (1) for a diminution of the record to bring before this court a minute order of the trial court dated July 12, 1939, and (2) to dismiss the appeal on the ground that it is frivolous and taken for the purpose of delay. [36 Cal. App. 2d 347]

(1)

January 30, 1939, the trial judge granted respondents Joe and Belle Snyder's motion for a new trial and submitted respondent Sternbeck's motion for a new trial, which was thereafter granted. The minute orders entered did not specify that the motions for new trials were granted on the ground of insufficiency of the evidence to sustain the verdicts. February 21, 1939, appellant appealed from the foregoing order. Thereafter on July 12, 1939, the trial court made the following order:

"George Dockweiler, Judge, presiding in Department 49 of the above court, in open session does, upon motion of the court, hereby order the entry nunc pro tunc in the records of this court the complete order heretofore made by this court in granting plaintiff a new trial by the addition to the minute order of the following words omitted by the Clerk of Court, to-wit:

"'... upon the ground of the insufficiency of the evidence to sustain the verdict'

"thereby making the order granting new trial to read as announced by this court on January 30th, 1939 when granting plaintiff's motion for new trial, to-wit:

"'In case number 429808, Snyder, et al., Volinder et al., plaintiffs' motion for new trial is granted upon the ground of the insufficiency of the evidence to sustain the verdict.'

"Dated, June 29th, 1939, Dept. 49, Superior Court, Los Angeles, California.

"George A. Dockweiler

Judge, Superior Court"

[1] It is to have the foregoing order of the trial court, which is applicable to both of the above-entitled cases, made a part of the record in this court that respondents make their motion for a diminution of the record. No valid reason has [36 Cal. App. 2d 348] been urged by appellant in opposition to this motion. It appears to us that it should therefore be granted.

(2)

[2] Respondents' motion to dismiss the appeal is predicated upon the rule of law that, where a motion for new trial is granted upon the ground of insufficiency of the evidence to sustain the verdict, an appellate court will not disturb the ruling of the trial court if the record discloses a conflict in the evidence, and an appeal from the order granting a new trial will under such circumstances be dismissed by the appellate court. (Robbins v. Jenkins, 9 Cal. App. 2d 580, 583 [50 PaCal.2d 826].) Applying the foregoing rule to the facts of the instant case, it appears that the trial court granted the motions for new trials on the ground of insufficiency of the evidence to sustain the verdicts; and it further appears that there is a substantial conflict in the evidence. Therefore, respondents' motion should be granted.

For the foregoing reasons the motions (1) for a diminution of the record and (2) to dismiss the appeal are and each is granted.

Moore, P. J., and Wood, J., concurred.