Smith v. Halstead

McCOMB, J.

Plaintiffs appeal from an order granting a motion for a new trial after judgment had been entered in their favor in an action instituted to recover damages resulting from an automobile accident.

Chronology

1. May 5, 1943, judgment was entered in favor of plaintiff Evelyn Paddock Smith for the sum of $2,500, and in favor of plaintiff Charles B. Paddock for the sum of $3,000 against defendants.

2. December 16, 1946, defendants filed notice of intention to move for a new trial.

3. January 3, 1947, the motion for a new trial was denied.

4. January 10, 1947, a motion to vacate the order of January 3, 1947, denying the new trial was granted.

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5. January 10, 1947, defendants’ motion for a new trial was granted. This order was entered January 17, 1947.

6. January 11, 1947, plaintiffs appealed from the order “granting a new trial.”

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7. At the conclusion of the hearing on January 10, 1947, plaintiffs requested a continuance of the hearing which was denied.

8. February 7, 1947, plaintiffs filed an affidavit of service of notice of entry of the judgment which had been entered on

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May 5, 1943. This affidavit disclosed that on February 18, 1944, defendants had been served with notice of entry of the judgment.

Questions

First:

Did the trial court err in making its order of January 10, 1947, vacating its previous order of January 3, 1947, by which it had denied defendants’ motion for a new trial?

This question will not be considered by us for the reason that the rule is established that the notice of appeal limits the power of the reviewing court, and an order will not be reviewed from which no appeal has been taken.