Wilson v. Dunbar

BARNARD, P. J.

This is an appeal from an order vacating and striking from the records a previous order granting a new trial on the issue raised by the filing of a third party claim.

On March 31, 1936, the plaintiff brought an action upon a promissory note against the defendant, Owen L. Dunbar. An attachment was issued and levied upon an automobile which was registered in the name of the defendant. The defendant defaulted and judgment was entered against him on May 21, 1936. On April 15, 1936, Guy Dunbar filed a third party claim, claiming to be the owner of this automobile.

[145]

After a hearing, properly noticed, judgment was entered on July 24, 1936, in favor of the plaintiff and against the third party claimant. A motion for a new trial was made by the third party claimant and on September 21, 1936, an order was entered granting him a new trial. A notice of motion to strike this order from the records was filed by the plaintiff on August 8, 1938. Such a motion was made and argued and, on August 26, 1938, the same was granted and an order entered striking from the record the previous order granting a new trial. From the order thus entered the third party claimant has appealed.

The controlling question presented is whether or not a trial court is authorized by statute, or otherwise, to grant a new trial after judgment determining the rights of a third party claimant in the proceeding authorized and provided for in section 689 of the Code of Civil Procedure. In

Nelson

v.

Superior

Court, 14 Cal. App. (2d) 44 [57 Pac. (2d) 1351], the power of a court to grant a new trial after such a judgment was in effect approved, it being held that a motion for a new trial extended the time within which an appeal might be taken. That case, however, involved a state of facts which arose at a time when section 689 contained little as to the procedure in connection with hearing a third party claim, and did not expressly provide for a right of appeal. It was pointed out therein that a different situation prevails in those instances where a complete scheme of procedure for a particular proceeding is provided by a statute which expressly provides for an appeal but omits any provision for the granting of a new trial.