Universal Film Manufacturing Co. v. Kerrigan

CONREY, P. J.

Action to recover damages for breach of contract to render personal services. Defendant denied that he entered into the alleged contract; also denied the alleged breach of contract, and denied that plaintiff was damaged thereby. There were further issues, including those presented by cross-complaint and the answer thereto. After entry of judgment against defendant for a stated amount, the defendant gave notice of intention to move the court “to vacate and set aside the decision and judgment” entered, and to grant a new trial of the action. That motion having been presented in due course, it was ordered that “said motion for a new trial herein is granted and a new trial is ordered as to issue or issues presenting the question of thé amount of damages suffered by the plaintiff; as to all other issues the motion for a new trial is denied.” Thereafter the defendant gave notice of appeal “from the whole of the said judgment, except the part and portion thereof vacated by the order of the said court in granting in part defendant’s motion for a new trial, to wit,” etc.

[1]

Although the appeal has 'been presented by briefs arguing the case on its merits, the court is forced to take notice of the fact that there is no judgment, and, therefore, there can be no appeal therefrom. The order for retrial of the issue as to amount of damages necessarily set aside the judgment. This is an action at law, wherein the judgment is single and indivisible, for it consists of only the one order that the plaintiff recover from the defendant so much money. Taking out that recovery, nothing effective as a judgment remains in existence.

In arriving at this conclusion, we have not excluded from consideration those decisions by which it has been determined that an order granting a new trial does not absolutely vacate the judgment until the order has become ’final.

[257]

(Sherwin

v.

Southern Pacific Co.,

168 Cal. 722, [145 Pac. 92], and cases cited.) We also have in mind the amendments enacted in 1915, [Stats. 1915, pp. 209, 328], to certain sections of the Code of Civil Procedure, whereby the right of appeal from an order granting a new trial, in cases tried as was the case at bar, was taken away, and whereby it was provided that on appeal from the judgment the court may review any order on a motion for a new trial. (Secs. 956, 963, Code Civ. Proc.)