Conlin v. Coyne

DESMOND, J.,

pro tem.

Respondent moved to dismiss an appeal from an order of the superior court denying a new trial, claiming that such an order is not appealable, under section 963 of the Code of Civil Procedure, which lists the cases in which an appeal may be taken. Prior to 1915, by the terms of that section, an order refusing, as well as an order granting, a new trial was appealable. The legislature in that year struck out the words “or refusing” before “a new trial” (Stats. 1915, p. 209), but at the same session recast section 956 of the Code of Civil Procedure in the form now in effect whereby it is provided that upon an appeal from a judgment “the court may . . . review any order on motion for a new trial”. Section 953e of the Code of Civil Procedure was enacted in 1931. It gives the trial court power to vacate a judgment, order or decree from which an appeal has been or is to be taken and to order a new trial, when by reason of the death or other disability of the trial reporter it is impossible to have the phonographic report of the proceedings transcribed. In the instant case, after plaintiff had secured a judgment in a case tried by a jury, the trial court denied a motion for a new trial, notice of appeal from the judgment was filed, the clerk’s transcript ordered, paid for and filed and the reporter’s transcript ordered, partly paid for and partly completed when the reporter who was assigned to take down the testimony died. The reporters who worked with him on the case and who use the same or a similar system of shorthand were unable to read his notes, therefore the testimony cannot be transcribed for an appeal, as provided by section 953a of the Code of Civil Procedure. Meantime the original file containing the given and refused instructions was destroyed by fire, a circumstance which appellants claim prevents them from presenting their appeal from the damage judgment by an alternative method.

In this situation they moved the court under section 953e of the Code of Civil Procedure to vacate the judgment

[571]

and order a new trial. The question we must determine is whether an appeal may be taken from the order denying this motion.

Referring again to section 963 of the Code of Civil Procedure, it may be noted that an appeal lies “from any special order made after final judgment”. In 2 California Jurisprudence, page 152, we find the following: “An ‘order’ within the meaning of this provision has been defined to be the judgment or conclusion of the court, upon any motion or proceeding. And it is clear that the term ‘order’ includes cases where the court denies as well as where it grants affirmative relief. . . . The necessity for this provision allowing appeals from special orders after judgment is apparent when it is considered that an appeal from the judgment would only bring up the record of the proceedings resulting in the judgment, and that such appeal may have been taken and even disposed of before the making of the order complained of. ’ ’