Wallace v. Carlin

WOOD (W. J.), J.,

pro

tem.

Plaintiff seeks to recover a sum alleged to have been earned as a salesman for defend

[32]

ant. At the close of plaintiff’s testimony defendant presented a motion for nonsuit, which was taken under advisement and on a later date, December 18, 1925, granted by the court. An entry of the order granting the motion was made upon the minutes of the court. On January 5, 1926, a judgment was signed by the trial judge and caused to be filed, in which the following appears: “Whereupon, upon motion of said counsel, said court

take

said motion under advisement, and thereafter and upon the 18th day of December, 1925, said Court decided to and did grant such motion for non-suit, and there was caused to be entered in the minutes of said Court a minute order granting judgment for defendant on defendant’s motion of non-suit thereon; Now Therefore, pursuant to law and the premises, It Is Hereby Ordered, Adjudged and Decreed, that a judgment of non-suit be and the same is hereby entered in favor of defendant and against the plaintiff, on the ground that upon said trial the plaintiff has failed to prove sufficient facts to constitute a

course

of action in favor of plaintiff and against the defendant; It is hereby further ordered and adjudged that defendant have and recover against plaintiff its costs of suit herein, taxed at $-.” A motion for new trial was made within due time and denied. On February 25, 1926, plaintiff filed the following notice of appeal: “Notice is hereby given that Lucian E. Wallace, plaintiff in the above-entitled cause, intends to appeal, and does hereby appeal, to the District Court of Appeal of the State of California, from the judgment of non-suit heretofore rendered in said cause in favor of defendant and against plaintiff, by the Honorable John L. Fleming, Judge of said court; which said judgment was formally entered of record in said court under date of Jan. 5, 1926.”

Defendant asks us to dismiss the appeal, claiming that it was taken from the formal judgment entered on January 5, 1926, and that no appeal was taken from the judgment of nonsuit entered in the minutes on December 18, 1925. The order granting the motion for a nonsuit was a final judgment and as such was “effective for all purposes.” (Sec. 581, Code Civ. Proc.) If, therefore, there is no appeal before us from the order of December 18, 1925, there is presented only a moot question.