Progressive Finance Corp. v. Vining

THE COURT.

On petition of plaintiff praying that the decision and order of this court, entered on June 17, 1931, (Cal. App.) 300 Pac. 979, be set aside, and that the judgment of the superior court be affirmed with modifications in accordance with the original decision rendered herein on May 20, 1931.

The said order of June 17th was made in response to a suggestion of counsel for defendants that the appeal of plaintiff from the order denying plaintiff’s motion to vacate the judgment of the court below was an attempted appeal for a nonappealable order. In support of this point counsel for defendants relied upon certain decisions of the courts of appeal which undoubtedly support their contention. In our order of June 17th we followed those decisions on the assumption that if there had been Supreme Court decisions to the contrary they would have been brought to our attention.

Now, on petition filed by plaintiff, we find that it has been directly decided by the Supreme Court in ruling on a motion to dismiss an appeal taken from an order denying a motion to vacate a judgment, which motion was made in accordance with section 663 of the Code of Civil Procedure, that an appeal does lie from an order denying such motion.

(Delta Farms

v.

Chinese American Farms,

201 Cal. 201 [255 Pac. 1097], and cases there cited.)

In view of the foregoing, we are constrained to hold that the judgment of this court entered on June 17th dismissing the appeal from said order and affirming the judgment should be set aside, and the entire cause reopened for decision on the appeals as originally presented. The cause having been fully presented on the merits and carefully considered may now be decided without further argument.

The opinion on the merits of these appeals, written by Mr. Justice York and filed herein on May 20, 1931, is hereby adopted as the opinion of the court:

[426]

i "The action out of which these appeals arise was brought to recover on a promissory note for the sum of $3,000, executed by defendants Vining and Lane in favor of one Dennis, who endorsed the same to one Albert Lane, who in turn endorsed it to plaintiff before maturity and without recourse.