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BARBARA TUBBS, a Minor, etc., Respondent, v. LOS ANGELES TRANSIT LINES (a Corporation) et al., Appellants.

MOORE, P.J.

Defendants appeal from an order granting plaintiff's motion for a new trial. The action was for damages claimed to have resulted from personal injuries arising out of the allegedly negligent operation of a streetcar of the corporate defendant by defendant Gordon, its employee, while acting in the course of his duties.

The notice of plaintiff's intention to move for a new trial was addressed only to defendant corporation and its attorney who represented both defendants.

[1, 2] Appellants contend that the failure to give notice to defendant Gordon prevented the trial court from acquiring jurisdiction to entertain the motion for a new trial. This exact question was considered in an identical factual situation by this court in Spruce v. Wellman, 98 Cal.App.2d 158 [ 219 P.2d 472], wherein it was held that "in the absence of service on the adverse party of notice of intention to move for a new trial the superior court is without jurisdiction to grant the motion" and "an `adverse party' is one whose interest in the subject matter . . . will be affected by the granting of the motion. . . ." ( Ibid., p. 160.) That decision is determinative of this appeal.

The order granting a new trial is reversed.

McComb, J., and Fox, J., concurred.

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TUBBS v. LOS ANGELES TRANSIT LINES
(Dec 8, 1953)