Doyle v. Republic Life Insurance Co.

125 Cal. 15 | Cal. | 1899

HENSHAW, J.

—Plaintiff had obtained judgment against the Republic Life Insurance Company, a corporation organized under the laws of the state of Illinois. The service of the summons was by publication and mailing, and the defendant corporation suffered default. One year less eleven days after entry of this judgment S. D. Ward asked that it be vacated, and that he, as receiver of the defendant corporation under appointment of the circuit court of Illinois, be permitted to answer to the merits of the action. His motion was denied by an order given on May 12, 1896. Thereafter he moved for a new trial of this motion, and by its order of May 8, 1897, the court denied his latter application. He took his appeals from both of these orders after that date.

Neither of these appeals can be entertained. The order of the court refusing Ward leave to answer was not a final judgmeut, but was an order made after final judgment. His appeal therefrom was not taken within sixty days. (Code Civ. Proc., sec. 939, subd. 3.) It must, therefore, be dismissed.

The order denying the motion for a new trial of the petition for leave to answer is not appealable: 1. Because the practice of moving for a new trial of a motion is one neither countenanced nor permitted by our procedure (Code Civ. Proc., secs. 590, 656); and 2. Because a subsequent order refusing to vacate an appealable order, which has been regularly and advisedly made, is not appealable. (Harper v. Hildreth, 99 Cal. 265.)

Both of the appeals are, therefore, ordered dismissed.

Témple, J., and McFarland, J., concurred.