Beach v. Spokane Ranch & Water Co.
21 Mont. 7
Mont.
1898
Check Treatment
Pigott, J.

— Motion to dismiss appeal. Judgment was entered against defendant on July 3, 1897. On October 11, 1897, the court made the following order, which was entered on the minutes: “On motion of counsel for defendant, and by consent of plaintiffs, court this day granted thirty days’ additional time to defendant in which to prepare, serve, and file statement on motion for new triaj and bill of exceptions herein.” December 28, Í897, plaintiffs moved the court to correct the order of October 11th by striking out the words, “and by consent of plaintiffs.” Upon the hearing of the motion, plaintiffs claimed that the order was irregular,, and was *8made without their knowledge or consent. The motion was denied. Evidence adduced upon the hearing is brought here by bill of exception taken to the order denying the motion. Defendant moves to dismiss the appeal upon three grounds:

1. It is urged that the order is not appealable. Subdivision 2 of Section 1722 of the Code of Civil Procedure, authorizes appeal from any special order made after final judgment. Upon authority of Clarke v. Gonu, 2 Mont. 538; Mining Co. v. Weinstein, 7 Mont. 346, 17 Pac. 108; Calderwood v. Peyser, 42 Cal. 110; Clark v. Crane, 57 Cal. 629; and Empire Gold Mining Co. v. Bonanza Gold Mining Co. 67 Cal. 406, 7 Pac. 810, — and for the reasons there assigned, we hold -that the order is appealable. See, also, Hayne, New Trial and Appeal,' § 196. • It is also insisted that, if the order of October 11th is subject to appeal, the subsequent order denying a motion to correct or modify it is not appeal-able. The general rule is that when an appeal can be taken from an order, a subsequent order, denying a motion to change the first order, is not appealable. But we are of opinion that it does not apply when the original order was irregularly issued, or was made ex pcurte, and without notice. The principle of this exception to the rule was recognized in Mayor, etc., of the City of San Jose v. Fulton, 45 Cal. 316, and is approved in Hayne, New Trial and Appeal, § 19, subdivision 4. In the case at bar there is a controversy in respect of the order of October 11th, plaintiffs insisting that it was made without their knowledge or consent, and irregularly, while defendant contends to the contrary. We think this is sufficient to establish prima facie the appealable character of the subsequent order.

2. The second reason stated as a ground for dismissing the appeal is “that there is no bill of exceptions herein, for the reason that the objection is made upon a matter of fact, and an exception does not lie thereto. ” Even if this were true, it would not require a dismissal. But the exception is to the decision of the court denying the motion to change the order of October 11th, and is, therefore, clearly to a matter of law, *9within the meaning of Section 1150 of the Code of Civil Procedure.

3. The last ground is that there is no statement on motion for a new trial. This is no reason for dismissing the appeal. An issue of fact arises upon the pleadings. (§ 1030, Code of Civil Procedure.) The only pleadings allowed are named in Section 662. Motions are not among them. A new trial is a re-examination of an issue of fact in the same court after a trial and decision. (§ 1170.) It is clear that the issue of fact mentioned in Section 1170 is that defined by section 1030 as arising upon the pleadings. There is no statute permitting the new trial of a motion. (See Harper v. Hildreth, 99 Cal. 265, 33 Pac. 1103.) The motion to dismiss the appeal is denied.

Pemberton, C. J., and Hunt, J., concur.