WHITE v. Holmes-Douglas Lumber Company, a partnership, and Clay Holmes, Lester Holmes and Kelth Douglas, partners associated in business under the common name of Holmes-Douglas Lumber Company, and Clay Holmes, Lester Holmes and Keith Douglas, individually, Defendants and Appellants.

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District Court of Appeal, Third District, California.

William Virgil WHITE, Plaintiff and Respondent, v. TACOMA LUMBER SALES, INC., a corporation, et al., Defendants, Holmes-Douglas Lumber Company, a partnership, and Clay Holmes, Lester Holmes and Kelth Douglas, partners associated in business under the common name of Holmes-Douglas Lumber Company, and Clay Holmes, Lester Holmes and Keith Douglas, individually, Defendants and Appellants.

Civ. 10064.

Decided: May 26, 1961

Blaine McGowan, Eureka, for appellant. D. E. Cavileer, DeMeo & DeMeo, Santa Rosa, for respondent.

This is an appeal from a money judgment in a personal injury action.

Before the entry of the judgment appellants made a motion for judgment notwithstanding the verdict. They did not at that time reserve the right to apply for a new trial. However, a week later they filed a notice of motion for a new trial. The trial court struck this motion and denied the motion for judgment notwithstanding the verdict. Thereafter judgment was entered on the verdict in favor of respondent.

Appellants assign as error the striking of their motion for a new trial. There was no error. Appellants waived the right to apply for a new trial by failing to contemporaneously reserve such right at the time they made a motion for judgment notwithstanding the verdict. Code Civ.Proc. sec. 629; Estate of Jackson, 157 Cal.App.2d 198, 203–204, 320 P.2d 563. Moreover, appellants did not file the notice of intention to move for a new trial within five days after making the motion for judgment notwithstanding the verdict as required by Section 659 of the Code of Civil Procedure.

The judgment is affirmed.

VAN DYKE, Presiding Justice.

SCHOTTKY and PEEK, JJ., concur.