Westervelt v. McCullough

FINLAYSON, P. J.

Respondent moves to dismiss the appeal, which was tak^ri from an order denying a motion made by defendant in the trial court under section 663 of the Code of Civil Procedure, namely, a motion in that court to set aside its judgment, amend its conclusions of law, and enter another and different judgment. No appeal has been taken from the judgment. Respondent claims that an order

denying

a motion to set aside the judgment and to enter

[363]

another and different judgment is not an appealable order. Hence her motion to dismiss this appeal.

An order denying a motion made under section 663 is unquestionably a specialorder made after final judgment, and as such is appealable under section 963—unless there be some good reason for holding otherwise. Because in section 663a the legislature expressly provided that an order

granting

such a motion may be reviewed on appeal in the same manner as a special order made after final judgment, respondent argues that, under the familiar rule of construction,

expressio unius est exclusio alterius,

it should be held that the lawmakers did not intend that there should be a right of appeal from an order

denying

the motion. To support this view respondent cites

Modoc Co-operative Ass'n

v.

Porter,

11 Cal. App. 270 [104 Pac. 710], It is true that certain

dicta

may be found in the opinion in that case which seem to give color to respondent’s contention; but since that case was decided our supreme court has stated unequivocally that an order denying a motion made under section 663 is appealable under section 963, as a special order made after final judgment.