Isaacs v. Jones

CONREY, P. J.

This is a motion presented under Rule V, section 3, of the Rules for the Supreme Court and District Courts of Appeal by the respondents to dismiss the appeal or affirm the judgment upon the ground that the appeal is taken for delay only, and on the ground that the question on which the decision depends is so insubstantial as not to need further argument.

The appeal is from an order setting aside an order of dismissal of the action. The dismissal had been granted on written request filed by plaintiff’s attorney at the time when the case was about to be called for trial. The motion to set aside the dismissal was made as a motion for relief under section 473 of the Code of Civil Procedure, it being claimed that the judgment of dismissal had been entered by mistake, inadvertence and excusable neglect, of plaintiff’s counsel.

The sole ground of appeal as shown by appellant’s statement in his brief, of the question involved, is that upon the facts stated the court was without jurisdiction to vacate and set aside the order of dismissal of the action.

Answering the sole question of law presented by counsel, we are of the opinion that the court had jurisdiction to determine the motion and make the order from which the appeal has been taken. We are not called upon to pass upon the sufficiency of the evidence of mistake, inadvertence or excusable neglect which induced the court to make the order setting aside the dismissal of the action. It was an order which the court had power to grant upon the stated grounds thereof. (Code Civ. Proc., sec. 473;

Palace Hardware Co.

v.

Smith,

134 Cal. 381, 385 [66 Pac. 474].)

The order is affirmed.

Houser, J., and York, J., concurred.