Gray v. Cotton (1917) · DecisionDepot

Gray v. Cotton

Name: California Superior Court Tentative Rulings
Creator: DecisionDepot
License: https://creativecommons.org/licenses/by-nc/4.0/

California Supreme Court Jan 24, 1917 No. Sac. No. 2581.Published

Before: Shaw

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Holding. The court held that an order denying a motion for a new trial is not appealable and that a motion for a new trial does not lie to re-examine a decision on a motion, meaning such a motion does not extend the time to appeal the underlying judgment.

Issues

Whether an order denying a motion for a new trial is appealable under the 1915 amendment to section 963 of the Code of Civil Procedure.
Whether a motion for a new trial is a proper procedure to challenge a judgment entered against a surety on motion.
Whether the pendency of an unauthorized motion for a new trial extends the time for filing an appeal from the judgment.

Disposition. appeals dismissed

Quotations verified verbatim against the opinion

“The amendment of 1915 to section 963 of the Code of Civil Procedure [Stats. 1915, p. 209], does not allow an appeal from an order denying a motion for new trial.”

“It is well settled that proceedings for new trial do not lie to secure the re-examination of the decision of a motion.”

Synopsis

APPEAL from a judgment of the Superior Court of Sacramento County, and from an order refusing a new trial. Peter J. Shields, Judge.

The facts are stated in the opinion of the court.

SHAW, J.

In this ease on May 8, 1916, judgment was entered, on motion of the plaintiff, against H. D. Rowe as surety in an undertaking given by him on behalf of the defendants for the stay of execution upon an appeal taken by said defendants from a judgment against them for $7,443.70, made up of several items set forth in separate counts of the complaint. That appeal was successful only with respect to the first count. As to that item the judgment was reversed. As to the other items it was, in effect, affirmed, and the cause was remanded with directions to the court below to enter judgment therefor against the defendants in favor of the plaintiff.

(Gray

Cotton,

166 Cal. 130, [134 Pac. 1145].)

Upon the entry of this judgment against him on the motion as aforesaid, Rowe filed a notice of intention to move for a new trial of the motion. This proceeding was decided by the court below on July 29, 1916, the court denying said motion. Rowe filed notices of appeal both from the judgment and from the order denying his motion for a new trial. The respondent now moves to dismiss both appeals.

1. The amendment of 1915 to section 963 of the Code of Civil Procedure [Stats. 1915, p. 209], does not allow an appeal from an order denying a motion for new trial. So far as that appeal is concerned it is immaterial whether a motion for new trial would lie in the case of such a judgment or not. The appeal is unauthorized and must be dismissed.

2. The notice of appeal from the judgment was filed on August 4, 1916, more than sixty days after the entry of the judgment. It was too late unless it is saved by the clauses allowing an appeal to be taken within thirty days after the termination in the trial court of proceedings on motion for new trial. (Secs. 939 and 941b.) If the court below had power to grant a new trial of the proceeding by which the judgment against Rowe was given, the appeal from the judgment would be in time.

Under section 942 of the Code of Civil Procedure an undertaking for the stay of execution upon an appeal from a money

[258]

Gray v. Cotton

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Synopsis

SHAW, J.

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