Barbaria v. Independent Elevator Co.

[658]

NOURSE, P. J.

Motion to dismiss appeal. The defendants and respondents Independent Elevator Company, Inc., and B. C. Van Emon Elevators, Inc., move to dismiss the appeal from the order denying plaintiff’s motion to enter default as to them.

The action was brought by Barbaria for injuries sustained when an elevator he was operating fell. He sued four defendants, the two petitioners who are elevator maintenance companies who at some time worked on the repair and maintenance of the elevator, Atwell, Vogel and Sterling, Inc., who was to inspect the elevator and Pat Keane the individual inspector, both the latter because they did not report the defect that caused the accident. All four defendants answered denying negligence. The verdict was for the plaintiff as to Atwell, Vogel and Sterling, Inc., and Pat Keane, and for the defendants elevator companies. Judgment was entered accordingly. The two losing defendants moved to vacate the verdict and grant a new trial on all the legal grounds, and plaintiff moved to set aside the part of the verdict rendered against him and grant a new trial on the ground of insufficiency of the evidence and errors of law. The court granted the motion for new trial by Atwell, Vogel and Sterling, Inc., and Pat M. Keane on the ground of excessive damages, insufficiency of the evidence and errors of law excepted to by said defendants. The court denied the plaintiff’s motion for a new trial as to the two elevator companies.

At the beginning of the second trial plaintiff moved for a default judgment against the two elevator companies because they declined to defend on the ground that as to them a final adjudication had been reached at the first trial. The court denied the motion and declared that the trial would proceed as to the other two defendants only. At the end of the trial the court directed a verdict for said two defendants and verdict and judgment were entered as to said two defendants only. Plaintiff appealed from said judgment and “from the order of said court denying plaintiff’s motion for entry of default against defendants Independent Elevator Co. and B. C. Van Emon Elevators, Inc.” Said two elevator companies moved to dismiss the appeal from the order denying plaintiff’s motion on the ground that it was not appeal-able. It was dismissed on the May calendar on that ground. (See 3 Cal.Jur.2d 513;