Hohnemann v. Pacific Gas and Electric Co.

KNIGHT, J.

The trial court denied defendant’s motion to terminate the proceedings instituted by plaintiffs for' the preparation of a transcript on appeal, which plaintiffs had taken pursuant to the alternative method provided by section 953a of the Code of Civil Procedure from a judgment in defendant’s favor after verdict by a jury in an action for damages; and from the order of denial so made defendant has taken this appeal, which plaintiffs now move to dismiss upon, the ground that such an order is not appealable. Defendant contends in opposition to the motion to dismiss that the order in question is a “special order made after final judgment’’, and therefore under the provisions of subdivision 2 of section 963 of the Code of Civil Procedure, is appealable.

It seems that the precise question here presented has never been definitely ruled upon. It was raised in the case of

Hudgins

v.

Standard Oil Co.,

136 Cal. App. 44 [28 Pac. (2d) 433], but not decided. However, it has been held generally that a special order made after final judgment, as contemplated by subdivision 2 of section 963 of the Code of Civil Procedure, to be appealable, must affect the judgment in some manner or bear some relation to it either by way of enforcing it.or staying its execution

(Lake

v.

Harris,

198 Cal. 85 [243 Pac. 417], citing

Griess

v.

State Investment etc. Co.,

93 Cal. 411 [28 Pac. 1041];

Kaltschmidt

v.

Weber,

136 Cal. 675 [69 Pac. 497];

Watson

v.

Pryor,

49 Cal. App. 554 [193 Pac. 797]; 2 Cal. Jur., p. 153); and it has been held specifically that an order

terminating