delivered the opinion of the Court.
Mr. J. Heyueneeldt and Wells' concurred.This is an appeal from an order refusing a new trial.
The opinion of the Court states, that the notice of motion and grounds for a new trial were filed within the time required by law; and that the application was refused upon the authority of the decision of this Court, in the case of Baldwin v. Kramer, 2 Cal. 582.
The Court below evidently mistook the meaning of this Court as announced in that decision. The facts of the case showed that no notice or motion for new trial had been filed, until several months after the close of the term at which the judgment was rendered. We did not decide that it was necessary to dispose of such motions at the [107] term of the trial. Such a * rule would be in violation of the Statute, and often work great hardships. It not unfrequently happens that many cases are disposed of on the last day of the term, and in the absence of parties, a motion filed within the time allowed by law, must necessarily stay the operation of the judgment, and preserve all rights until it can be heard and determined, and is not affected by the adjournment of the Court.
To prevent future mistakes, it would be well for the District Courts throughout the State to adopt some rule upon this subject.
As the error complained of in this case arose from the misapprehension of the Court, and is not the fault of the parties, the order overruling the motion for new trial is vacated, with directions to the Court below to proceed de novo to determine the same. Costs to abide the judgment.