Dorland v. CunninghamDorland v. Cunningham
- Reporters:
- , ,
- Before:
- McKinstry
The notice of appeal points to- two orders, alleged to be special orders after final judgment. The first is said, in the nоtice, to be an order made and entered December 27,1882, vacating and setting aside an order made and entered August 21,1882, denying defendants’ motion for a new trial; *485the second, an order mаde and entered on the 9th of January, 1883, denying plaintiff’s motion to hаve the order of December 27, 1882, vacated and set asidе.
The transcript contains no order of August 21,1882, or of any other dаte, which purports to be an order denying the defendants’ motion for a new trial. There is in it a copy of an order made аnd entered August 21, 1882, vacating and setting aside “ the motion for a new trial granted August 16, 1882.” August 16, 1882, the court had made an order in words following: “ On motion of Messrs. Tobin & Tobin, and upon filing a stiрulation therefor, it is ordered that a new trial be and the samе is hereby granted.” On the 27th of December, 1882, the court below ordered that the order theretofore, and on the 21st of August, 1882, given and mаde, vacating the order granting defendants .a new trial, be set аside.
If it be assumed that the order last mentioned (which is not in terms an order vacating an order denying defendants’ motiоn for a new trial), is the order referred to in the notice of аppeal, as made on the 27th of December, 1882, should that оrder be reversed?
If the validity of the order of August 21st, 1882, be concеded, the defendants’ motion for a new trial has not yet, so far аs appears, been determined. The proceeding fоr new trial is in fieri. If appellant should succeed in getting the order of December 27th, setting aside the order of August 21st, reversed, the defendants’ motion for a new trial would be left still pending in the court belоw. The court may grant or deny the motion for a new trial, or dismiss the аpplication for want of prosecution.
But the order оf August 21,1882, was manifestly erroneous. While it was not of itself an order denying thе defendants’ motion for a new trial, since that motion had already been granted, it operated, if valid, to vacate thе former order, and thus to give plaintiff further opportunity to oppose the defendants’ motion for a new trial, or the court an opportunity to make a new order without referenсe to that matter. The statute authorizes but one motion for a new trial, and makes the ruling thereon final, so far as the Superior Court is concerned. For aught that appears in the transcript, the motion to set aside the order granting a new trial was mаde ex parte, and upon the same papers *486as those used on the motion for a new trial. If the practice of moving to set aside an order granting or denying a new triаl, should be allowed, “ the proceedings after judgment would be interminable, for the last order could be vacated upon motion of the losing party, and so ad infinitum. There must be some point where litigation in the lower court terminates, and the losing party is turned over to the appellate court for redress.” (Niles, J., in Coombs v. Hibberd, 43 Cal. 453.) In the сase just cited, an order vacating an order refusing a new triаl was reversed.
The Code of Civil Procedure provides that an ex parte order may be set aside, and without notice. The court below was justified in making the order of December 27th, setting aside the order (improvidently entered) vacating the order granting a new trial, and in entering the order denying plaintiff’s motion to set aside the order of December 27th.
Orders appealed from affirmed.
Ross, J., and McKee, J., concurred.
Hearing in Bank denied.