Gardner v. Stare

In Gardner v. Stare (1901) 135 Cal. 118, the Supreme Court held the moving party's application to stay execution of the judgment, which admitted the party's knowledge of the judgment, constituted "a waiver of the party's right to a notice of the decision" under a former version of section 659. (Gardner, at pp. 119-120.) When Gardner was decided, former section 659 read in pertinent part: "The party intending to move for a new trial must, within ten days after ... notice of the decision of the court ... file with the clerk and serve upon the adverse party a notice of his intention ... ." (Former 659, added by Stats. 1872 and amended by Code Amends. 1873-1874 ch. 383, 85, p. 315.) Because the moving party filed her notice of intention 12 days after serving her application to stay execution of the judgment, Gardner held the trial court "had no jurisdiction to hear her motion for a new trial." (Gardner, at p. 120.)