Gillis v. Bloome

CONREY, P. J.

This motion to dismiss an appeal by defendants from an order denying their motion to vacate and set aside an order granting a motion for a new trial (made after entry of a judgment of nonsuit in favor of the defendants) is made upon the ground that “the appeal attempted to be taken is from an order which is not appeal-able”.

When this motion to dismiss appeal was first made we denied it (117 Cal. App. 247 [4 Pac. (2d) 199]) on the supposed authority of

Moffitt

v.

Ford Motor Co., 212 Cal. 73

[297 Pac. 553]. We granted a rehearing because we were convinced of error in our application of that decision to the facts of this case.

In the Moffitt case it was held that there was a right of appeal from an order granting a new trial, when it was shown by the record that at the trial a jury had been impaneled and sworn, although the court granted the nonsuit following plaintiff’s opening statement to the jury and without receiving any evidence. But in the present case

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it appears that the trial, in which the nonsuit was granted, was before the court without a jury. There is no right of appeal from an order granting a new trial, other than “in an action or proceeding tried by jury where such trial by jury is a matter of right”. (Code Civ. Proc., sec. 963;

Dean

v.

Midland Farms Co.,

96 Cal. App. 214 [274 Pac. 71].) This is conceded by appellants.

On the argument here, counsel for appellants insisted that the record here is not limited to the question of right of appeal from the order granting a new trial. They say that the court was without jurisdiction to grant a new trial where the judgment was one of nonsuit (citing

Estate of Baird,

198 Cal. 490, 503, 504 [246 Pac. 324]) ; and insist that the order of the court when it granted the motion for new trial was in reality an order setting aside and vacating the judgment of nonsuit, and that the order from which they are now appealing is an order denying their motion to set aside that order setting aside the judgment of nonsuit. And they contend that they have a right of appeal from such order, which they claim is appealable as an order made after final judgment, other than a mere order granting a new trial.