Casner v. Daily News Co., Ltd.

THE COURT.

The defendants have made motions to dismiss the appeal of the plaintiff.

[404]

As the surviving widow of Mark Casner, the plaintiff commenced an action for damages for his wrongful death. The complaint alleges that he was struck by an automobile owned by the defendant, Daily News Company, thrown on the track of the defendant, Market Street Railway Company, and run over by one of its street cars. The plaintiff sued both corporations. The trial was commenced in April, 1937, before the court sitting with a jury. After all parties had rested each defendant made a motion for a directed verdict. Before the motion was ruled upon the plaintiff moved to dismiss the action without prejudice. This motion was granted, whereupon and on the same day, April 7, 1937, the jury was discharged. On April 26th the defendants respectively served and filed notices of motion to vacate the order of dismissal and for orders that their motions for a directed verdict be granted. These motions were granted on June 28, 1937. A formal judgment for the defendant, Market Street Railway Company, and against the plaintiff was, on written direction of the trial judge, filed on June 29th, and entered on June 30, 1937. Also a formal judgment for the defendant, Daily News Company, was, on like written direction of the trial judge, filed July 1 and entered on July 2, 1937.

On July 16, 1937, the plaintiff served and filed a notice of intention to move for a new trial, specifying all the-statutory grounds. No order of the trial court disposing of this motion appears of record. It was therefore denied without order of the court under the provisions of section 660 of the Code of Civil Procedure.

On September 14, 1937, the plaintiff filed a notice of appeal: (1) from the order of June 28, vacating the order of dismissal of date April 7, 1937; (2) from the judgment entered June 30; and (3) from the judgment entered July 2, 1937. The notice also specified an appeal from the order denying the plaintiff’s motion for a new trial. As the order denying the motion for a new trial was not an appeal-able order, no further notice need be taken of the attempted appeal therefrom. However, its propriety may be inquired into on an appeal from the judgments. (Sec. 956, Code Civ. Proc.)

The transcript on appeal was filed in the District Court of Appeal. Promptly and on February 21, 1938, before the fil