Kramm v. Stockton Electric R. R. Co.

136 P. 534 | Cal. Ct. App. | 1913

This is an appeal from an order relieving the defendant from its alleged default in failing to prepare and serve, within the time prescribed by law, its proposed bill of exceptions. The proceeding was had under section 473 of the Code of Civil Procedure, and the ground upon which the order was asked for and allowed was that the alleged default of the defendant was due to inadvertence and excusable neglect.

As is shown in Kramm etc. v. Stockton Electric R. R. Co., Civil No. 1115, ante, p. 737, [136 P. 523], this day decided, the order appealed from is not one from which an appeal may be taken, and this appeal will, therefore, have to be dismissed. (Code Civ. Proc., sec. 963, subd. 2; Kaltschmidt v. Weber,136 Cal. 675, [69 P. 497].)

The point is, however, reviewed and decided in Civil No. 1115, the action of the court relieving the defendant of its alleged default, together with all the proceedings had therein, being incorporated in the record on the motion for a new trial. (Kaltschmidt v. Weber, 136 Cal. 675, [69 P. 497].)

The appeal herein is dismissed.

Chipman, P. J., and Burnett, J., concurred.