57 P. 610 | Ariz. | 1899
On April 2, 1898, the court below rendered a judgment and decree in this cause in favor of the appellant, the plaintiff therein. A motion for a new trial was not filed until three days thereafter. On July 2, 1898, and at the same term of the district court, the motion was granted and the judgment set aside. Subsequently, on appellees’ motion, an attachment which had been issued in appellant’s behalf, was dissolved. The appeal is taken from the order of the district court granting a new trial, and also from the order dissolving the attachment. Our jurisdiction to review the case is challenged on the ground that neither of these orders is appealable. The right to an appeal depends entirely upon the statute. .If the statute does not confer it, it does not exist. The appellant bases his right of appeal in this ease mainly upon paragraph 593 of the Revised Statutes, which is as fol
The question then remaining to be considered is whether or not the order setting aside the judgment and.granting a new trial is a final judgment, for the determination of this point will also be decisive of our right to review the court’s action in dissolving the attachment. If the court had no power to make the order at the time it was made, the judgment rendered would be void, and an appeal would lie to review it. Trullenger v. Todd, 5 Or. 36; Deering v. Creighton, 26 Or. 556, 38 Pac. 710. Mr. Chief Justice Puller, in Hume v. Bowie, 148 U. S. 245, 13 Sup. Ct. 582, iñ commenting upon an order of the court vacating a judgment, said: “The question involved is one of power; for, if the court had power to make the order when it was made, then it was not a final judgment, as it merely vacated the former judgment for the purpose'of a new trial upon the merits of the original action. If the court had no jurisdiction over that judgment, the order would be an order in a new proceeding, and in that view final and reviewable.” It is contended by counsel for the appellant in this case that the court below was
Doan, J., and Sloan, J., concur.