8 P.2d 905 | Cal. Ct. App. | 1932
This motion to dismiss an appeal by defendants from an order denying their motion to vacate and set aside an order granting a motion for a new trial (made after entry of a judgment of nonsuit in favor of the defendants) is made upon the ground that "the appeal attempted to be taken is from an order which is not appealable".
When this motion to dismiss appeal was first made we denied it (
[1] In the Moffitt case it was held that there was a right of appeal from an order granting a new trial, when it was shown by the record that at the trial a jury had been impaneled and sworn, although the court granted the nonsuit following plaintiff's opening statement to the jury and without receiving any evidence. But in the present case *29
it appears that the trial, in which the nonsuit was granted, was before the court without a jury. There is no right of appeal from an order granting a new trial, other than "in an action or proceeding tried by jury where such trial by jury is a matter of right". (Code Civ. Proc., sec. 963; Dean v. Midland FarmsCo.,
[2] On the argument here, counsel for appellants insisted that the record here is not limited to the question of right of appeal from the order granting a new trial. They say that the court was without jurisdiction to grant a new trial where the judgment was one of nonsuit (citing Estate of Baird,
The record shows that the plaintiff gave notice of intention to move "to vacate and set aside the decision heretofore made herein, and to grant plaintiff a new trial in said action". The court's order made on presentation of that motion was as follows: "Plaintiff's motion for a new trial having been submitted, is now by the court granted. Judgment of nonsuit is set aside. Further trial granted as to defensive matter." This was, we think, merely an order granting a new trial. Its incidental effect would be to set aside the judgment, and the statement of that fact added nothing to the order. It being conceded, as necessarily it must be, that there was no right of appeal from the order granting a new trial, it follows that there was no right of appeal from a necessary element, or incidental consequence, of that order.[3] And it is settled, that "where the original judgment or order is not the subject of appeal it cannot be made reviewable by the device of moving to set it aside and appealing from the order denying the motion. (Estate of Keane,
Estate of Baird,
The motion to dismiss the appeal is granted.
Houser, J., and York, J., concurred.
A petition for a rehearing of this cause was denied by the District Court of Appeal on March 17, 1932.