Neilsen v. Saylors

DRAPER, J. pro tem.

*

Plaintiff’s complaint was on the common counts, seeking from all defendants a balance allegedly due for merchandise sold. Defendants Carien and Nelson cross-complained in interpleader, alleging that they had pur

[140]

chased lumber from defendants Saylor and Growers Lumber Company and owed therefor an amount in excess of the prayer of the complaint. Named as cross-defendants were the assignee for benefit of creditors of defendant Growers Lumber Company (who was not a party to the action as originally filed), plaintiff and all defendants except cross-complainants. It was alleged that the cross-defendants asserted conflicting claims to the amount admittedly owed by cross-complainants. Upon motion by cross-complainants under Code of Civil Procedure, section 386, and after deposit in court of the amount admitted due, they were directed to litigate among themselves their conflicting claims to the fund.

Three months later, cross-complainants moved to set aside that order under Code of Civil Procedure, section 473. They alleged that in fact they had paid more than was due for the lumber purchased by them but, through excusable neglect, their books had shown a balance remaining due when the cross-complaint was filed. Their motion was granted. The court vacated its earlier order, and directed repayment to cross-complainants of the amount previously deposited in court.

• Plaintiff appealed from the order vacating the order in interpleader. Cross-complainants move to dismiss the appeal upon the ground that the order of vacation is not an appealable order.

It seems clear that the latest order is not appealable unless it is “a special order made after final judgment” (Code Civ. Proc., § 963). If the original order in interpleader were appealable as a final judgment, it would follow that the order vacating it is within the quoted language, and is itself appeal-able

(Casner

v.

Superior Court,

23 Cal.App.2d 730 [74 P.2d 298] ;

Colby