The defendants have made motions to dismiss the appeal of the plaintiff.
*404 As the surviving widow of Mark Casner, the plaintiff commenced an action for damages for his wrongful death. The complaint alleges that he was struck by an automobile owned by the defendant, Daily News Company, thrown on the track of the defendant, Markеt Street Railway Company, and run over by one of its street cars. The plaintiff sued both corporations. The trial was commenced in April, 1937, before the cоurt sitting with a jury. After all parties had rested each defendant made a motion for a directed verdict. Before the motion was ruled upon the plaintiff moved to dismiss the action without prejudice. This motion was granted, whereupon and on the same day, April 7, 1937, the jury was discharged. On April 26th the defendants respectively served аnd filed notices of motion to vacate the order of dismissal and for orders that their motions for a directed verdict be granted. These motions were granted on June 28, 1937. A formal judgment for the defendant, Market Street Railway Company, and against the plaintiff was, on written direction of the trial judge, filed on June 29th, and entered оn June 30, 1937. Also a formal judgment for the defendant, Daily News Company, was, on like written direction of the trial judge, filed July 1 and entered on July 2, 1937.
On July 16, 1937, the plaintiff served and filed a notice of intention to move for a new trial, specifying all the-statutory grounds. No order of the trial court disposing of this motion appears of record. It was thеrefore denied without order of the court under the provisions of section 660 of the Code of Civil Procedure.
On September 14, 1937, the plaintiff filed a notice оf appeal: (1) from the order of June 28, vacating the order of dismissal of date April 7, 1937; (2) from the judgment entered June 30; and (3) from the judgment entered July 2, 1937. The notice alsо specified an appeal from the order denying the plaintiff’s motion for a new trial. As the order denying the motion for a new trial was not an appeal-able order, no further notice need be taken of the attempted appeal therefrom. However, its propriety may be inquired into on an appeal from the judgments. (Sec. 956, Code Civ. Proc.)
The transcript on appeal was filed in the District Court of Appeal. Promptly and on February 21, 1938, before the fil *405 ing of briefs for the respective respondents, notices of motion to dismiss the appeal were filed by them, based on the ground that the plaintiff’s appeаl was taken seventy-three days after the entry of the judgments and order appealed from, and was therefore too late.
It is conceded that if the рendency of proceedings based on the notice of intention to move for a new trial did not toll the statute, the appeal was not taken in time, аnd the motions to dismiss the appeal should be granted. It is likewise conceded that if new trial proceedings were available to the plaintiff in the circumstаnces, the appeal from the judgments was taken in time and the motions to dismiss the same should be denied. The sole question is whether, under the facts, the plaintiff was еntitled to move for a new trial.
The question must be resolved in favor of the plaintiff. When the trial court granted the plaintiff’s motion to dismiss her action “without prejudice”, she must be deemed to have been satisfied with that disposition of the pending action, choosing no doubt the alternative of filing another action. When, however, the defendants moved to vacate the order of dismissal of the action and this motion was granted, the plaintiff was in quite a different situation. Upon the granting of that motion the cause was then in the position of an action pending, at issue, undetermined and ready to be set for trial on motion of either party unless thе effectiveness of the order granting the motion to vacate should be nullified. The order has not been disturbed. However, it is the law of the case that said ordеr was appealable as a special order made after final judgment.
(Casner
v.
Superior Court,
23 Cal. App. (2d) 730 [
The situation of the parties would also seem to make available to the plaintiff the provisions of section 616 of the Code of Civil Procedure which reads as follows: “In all cases where the jury are discharged, or prevented, from giving a verdict, by rеason of accident or other cause, during the progress of the trial, or after the cause is submitted to them, the action may be again tried immediately, or at a future time, as the court may direct. ’ ’ Here the jury was prevented from giving a verdict, directed or otherwise, by its discharge immediately after the order of dismissal was entered.
It is urged by the defendants that the law of the case has also been established adversely to the plaintiff by the decision of the District Court of Apрeal in the proceeding entitled,
Casner
v.
Superior Cotort, supra,
wherein it was stated that the judgments themselves were special orders made after final judgment. That was a proceeding in
certiorari
wherein the petitioner therein, appellant herein, sought to have annulled the order of the superior court of June 28, 1937, vacating the prior order of dismissal of the action “without prejudice”, and the judgments entered pursuant to the order of date June 30, and July 2, 1937, respectively. The writ of review theretofore issuеd was discharged on the ground that the order and judgments sought to be annulled were appealable under the provisions of section 963 of the Code of Civil Procedure and that therefore
certiorari
would not lie. The District Court of Appeal was supported in its decision that
certiorari
was not available by section 1068 of the Code of Civil Procedure,
Hildcbrand
v.
Superior Court,
The appeal from the order vacating and setting aside the order of dismissal is dismissed. The motions to dismiss the appeal from the judgments are denied.
Rehearing denied.