Schmidt v. Townsend

[186]

PETERS, P. J.—

This is a motion to dismiss an appeal on the ground that the order appealed from is not appealable. The pertinent dates are as follows:

June 21,

1950—cause called for trial. The minutes of the court for that day show that the attorney for the plaintiffs “objected to the fact that no jury was in attendance despite his request for one, said objection being made for the record. Motion denied. . . . (The trial then proceeded.) ...”

July 1,

1950—plaintiffs filed a notice of appeal “from that certain order made and entered by the Court in this action on the 21st day of June, 1950, denying the plaintiffs the right to trial by jury in the above-entitled matter.”

July

29,1950—findings of fact made and judgment entered.

December

7,1950—defendant and respondent filed her notice of intention to move for a dismissal of the appeal.

January

15,1951—plaintiffs and appellants filed opposition to the motion to dismiss.

No appeal was taken from the judgment of July 29, 1950, and the time to appeal therefrom has long since expired. Respondent urges that the order denying a jury trial is not separately appealable and must be reviewed, if at all, on an appeal from the judgment. This is clearly the law. The order denying a jury trial is not made appealable by section 963 of the Code of Civil Procedure. Such an interlocutory order is therefore not appealable, but is reviewable only upon appeal from the final judgment.

(In re Robinson,

106 Cal. 493 [39 P. 862];

Stern

v.

Hillman,

115 Cal.App. 156 [300 P. 972];

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