Hughes v. Demund

CRAIG, J.

This is an appeal from an order of the superior court dismissing a motion for new trial, and the respondent moves this court to dismiss the appellant’s bill of exceptions upon the ground that there is no appeal from such order.

The respondent filed suit praying dissolution of an alleged partnership between the parties, and an accounting, and upon the trial the lower court found that a partnership existed, and that it owned certain real estate, and that a mortgage executed between the partners was invalid; an interlocutory decree was made and entered, reciting the facts found, directing an accounting, and stating that “upon such accounting being had the court will make and cause to be entered its final decree in this matter.” Said interlocutory decree was entered February 2, 1924, and on February 13, 1924, appellant served and filed a notice of intention to move for a new trial; on March 13, 1924, appellant served notice that she would move the court on March 19th for a new trial; such motion was continued until April 3d, and on this latter date, before the motion was heard, respondent moved that the motion for new trial be dismissed upon the ground that the same was premature, that no accounting had been taken, and that the superior court was without jurisdiction to act upon appellant’s motion. The motion for dismissal was granted, and appellant contends, first, that the judgment which was entered is not interlocutory, but final in its nature. However, she insists that it is not material to the determination of the present appeal whether the judgment is interlocutory or final, that in either event she is entitled to have her motion for new trial presented and heard upon its merits. In this behalf it is asserted that section 659 of the Code of Civil Procedure clearly provides for the making of a motion for new trial before the entry of judgment. This is true, but the judgment which that section contemplates as one which a motion for new trial may precede is a final judgment. That section and those preceding and following it having to do with new trials presuppose that the action

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has been prosecuted to a point where ultimate findings have been made as the basis for a final judgment. Title XIII of the Code of Civil Procedure regulates the method of review of all other judgments or orders than those which are made final. (See. 936, Code Civ. Proc.)