BECK v. SUPERIOR COURT OF MENDOCINO COUNTY (1941)

In this proceeding in certiorari, petitioner seeks the annulment of an order granting a new trial.

Petitioner was contestant in a will contest which was tried in the superior court in Mendocino County before Hon. W. D. L. Held, sitting with a jury. The jury returned a verdict in favor of petitioner and a decree was entered on October 30, 1940, revoking the probate of the will. A notice of intention to move for a new trial was filed and the matter was set for hearing on December 6, 1940. On that date the matter was regularly continued to December 9, 1940. On the last-mentioned date Hon. Donald Geary was presiding in said court in the place and stead of Hon. W. D. L. Held, who was out of the county at that time. The minutes of the court show that ‘it was stipulated that Judge Held is out of the county. Hearing of said matters is hereby continued by consent to December 18, 1940, in order that Judge Geary may read the transcript prepared in said matter.’ On December 18, 1940, the matter came on again before Hon. Donald Geary and the minutes show that ‘Respective counsel stipulated that trial Judge Hon. W. D. L. Held is at this time absent from the County of Mendocino. Said motion made by counsel and argued until 12:05 P. M., at which time recess was taken until 1:00 P. M. Resumed at 1:10 P. M. and further argued by respective counsel and submitted for decision.’ On December 28, 1940, Hon. Donald Geary signed an order granting a new trial upon the ground of insufficiency of the evidence and other grounds, which order was filed on December 30, 1940.

Thereafter, and on February 5, 1941, petitioner filed a notice of motion to vacate the order granting a new trial upon the ground ‘that said order granting a new trial is void as being in excess of the jurisdiction of the Hon. Donald Geary, the judge who made and entered the same’. Said notice was accompanied by an affidavit purporting to show that Hon. W. D. L. Held was not absent from the county of Mendocino on December 18, 1940, but was merely absent from the city of Ukiah, the county seat, during a portion of said day. Said motion to vacate was heard by Hon. Donald Geary on February 10, 1941. Testimony was taken and an order was made denying said motion. This proceeding was then commenced by petitioner.

The respondents contend that petitioner had a right of appeal from the order granting a new trial and that petitioner may not therefore invoke the remedy of certiorari. But we deem it unnecessary to discuss this contention of the respondents for we do not believe that petitioner is entitled in any event to the annulment of the order under the circumstances presented by the record before us.

Petitioner cites section 661 of the Code of Civil Procedure which provides in part as follows: ‘The motion for a 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 any other judge of the same court.’ Petitioner further cites Francis v. Superior Court, 3 Cal.2d 19, 43 P.2d 300, holding that the provisions of said section are mandatory. But when said section is examined, it appears that a judge other than the judge who presided at the trial may hear and determine the motion if at the time ‘noticed for hearing’ the judge who presided at the trial is absent from the county where the trial was had. It is conceded that said motion was regularly ‘noticed for hearing’ on December 9, 1940; that Hon. Donald Geary was presiding at that time; that Hon. W. D. L. Held was then out of the county; and that the further hearing of said motion was then ‘continued by consent to December 18, 1940, in order that Judge Geary may read the transcript prepared in said matter’. It therefore appears that Hon. Donald Geary had the power and jurisdiction to hear and determine said motion at the time that it was noticed for hearing on December 9, 1940; that the parties then stipulated to the fact that showed that Hon. Donald Geary had such power and jurisdiction; and that said parties consented to a continuance to December 18, 1940, for further hearing before Hon. Donald Geary solely for the purpose of permitting the latter to read the transcript before passing upon said motion. Under these circumstances, we do not believe that the power and jurisdiction of Hon. Donald Geary to hear and determine said motion were affected by any subsequent return of Hon. W. D. L. Held to the county during the time within which said motion could have been heard and determined.

In conclusion, we deem it appropriate to state that it appears that the spirit of said section 661 indicates that the judge who presides at a trial should hear and determine the motion for new trial whenever possible, and we believe that trial judges should make every effort to carry out the spirit of said section. The provisions of said section, however, contemplate that there may be circumstances under which some other judge should have the power and jurisdiction to hear and determine such motion. We are here dealing with an attack upon the jurisdiction of a judge other than the judge who presided at the trial, after the motion had been heard and determined by him. The presumption is in favor of the existence of such jurisdiction, subd. 16, sec. 1963, Code Civ.Proc., and the statute should not be construed to deny the existence of such jurisdiction unless the provisions thereof necessarily require such construction. Our reading of said section 661 and of the record before us leads us to the conclusion that Hon. Donald Geary had the jurisdiction to hear and determine said motion under the circumstances.

The order granting a new trial is affirmed.

SPENCE, Justice pro tem.

We concur: GIBSON, C. J.; CURTIS, J.; SHENK, J.; TRAYNOR, J.; EDMONDS, J.; CARTER, J.