Gittelson v. Gandolfo

YORK, J.

Respondent claims that an order refusing to set aside judgment and to enter a different judgment on the findings is not appealable.

The notice of motion to vacate judgment, an appeal from the ruling on which is the matter now before this

[321]

court on appeal, is a somewhat lengthy and somewhat complicated notice of motion, and recites that it is made under the provisions of sections, 663 and 663a of the Code of Civil Procedure. The cases cited by the respondent in his motion to dismiss the appeal were apparent authority for the contention of plaintiff in his motion to dismiss. However, in the later case of

Bond

v.

United Railroads of San Francisco,

159 Cal. 270, 273 [Ann. Cas. 1912C, 50, 48 L. R. A. (N. S.) 687, 113 Pac. 366], the court says:

“The order made after judgment, denying the motion to vacate the judgment and render a judgment consistent, as plaintiff claimed, with the answers of the jury to the question put to it, is clearly an appealable order. By section 963 of the Code of Civil Procedure, an appeal may be taken from any special order made after final judgment. This order is one of that kind. It is an order authorized by section 663 of the Code of Civil Procedure. Section 663a of the Code of Civil Procedure declares that an order

’granting

such motion may be reviewed on appeal in the same manner as orders made on motions for a new trial. ’ This was intended either to authorize a review of such an order on appeal from the judgment afterward made in pursuance of it, or to authorize a direct appeal from the order itself. In either case it should not be construed so as to affect the right given by section 963 to appeal from an order

denying

the motion, as from an order made after judgment. Bespondent’s position in that behalf is untenable.”

The sole question ruled on by the court in the case of