x999-1" type="majority"> TYLER, P. J.

This is an appeal from an order of the trial court, made in conformity to the direction of this court in Jackson v. Dolan, 58 Cal. App. 372 [208 Pac. 315], correcting the minutes of the trial court so as to show the true date of an order granting a new trial to defendant and appellant Ashe.

The action in which the new trial was granted was one instituted by plaintiff Jackson to recover damages for personal injuries sustained by him which were alleged to have been caused through the negligent operation of an automobile. The case was tried by a jury, and a verdict in the sum of four thousand dollars was rendered in favor of plaintiff, and judgment was entered thereon on December 15, 1920. Thereafter, on the seventeenth day of December, defendants made a motion for a new trial, and the motion was taken under advisement by the court. This,motion was grounded upon excessive damages claimed to have been given under the influence of passion and prejudice; insufficiency of the evidence; that the verdict was against law, and errors of law occurring at the trial. No action was had thereon until December 31, 1920, when the minutes of the court show that the motion was granted as to defendant Ashe.

After perfecting his appeal from this order, and on the twenty-second day of April, 1921, the plaintiff moved the trial court to vacate and set aside its order granting a new trial and to correct the minutes of the court so as to show *50 that the order was made on Sunday, January 2, 1921, and not Friday, December 31, 1920. Both motions were denied, and the validity of this order was before us on a former appeal. (Jackson v. Dolan, 58 Cal. App. 372 [208 Pac. 315].)

It appeared in that appeal that the term of office of Honorable Phil. D. Swing, the judge who tried the case and who made the order, expired on January 3, 1921. January 1st and 2d were both legal holidays, so that for all judicial purposes the term of office of the trial judge expired on December 31, 1920, the day the order bore date. The motion to vacate the order granting a new trial and to correct the minutes of the court was made on affidavits. The affidavit of the clerk of the court who made the entry in the minutes was to the effect that the order was in fact made on Sunday, January 2, 1921, a legal holiday, and that no other order was ever made. This affidavit was not controverted. It was held on said appeal that so far as the motion was directed to the vacation of the order granting a new trial it was properly denied, for the reason that the court had lost jurisdiction to afford any relief, as the effect of the appeal from its order was to remove from its jurisdiction the subject matter appealed from, including all questions going to the validity or correctness of such judgment or order. It was further held, however, that as to the motion to correct the minutes of the court, the same was improperly denied, for the reason that the records of a court remain within its physical custody 'and control, and‘an appeal does not prevent the court from correcting mistakes appearing on the face of the record as courts have at all times power to allow amendments to judgments for the purpose of having them express what was rendered so that the record will speak the truth. It was therefore ordered that the trial court determine the true facts with relation to the entry of the order and take action accordingly.

In conformity with this direction, the trial court proceeded to determine the truth as to the time when the order granting the new trial was made. It found upon uncontroverted testimony that the order vacating the judgment as to Gregory Ashe and granting him a new trial was given, ordered, and made by the court on Sunday, January 2, 1921, and not on December 31, 1920, as recited, and the minutes were accordingly corrected so as to state the true facts.

*51 This is ail appeal from such order. From what we have said it is manifest that there is no merit in the appeal.

The order is affirmed.

Knight, J., and Cashin, J., concurred.

Citation profile

Relationships

How this case has been treated — in progress