California Delta Farms, Inc. v. Chinese American Farms, Inc.

WASTE, C. J.

Judgment, based upon findings, was entered in the court below, in favor of the plaintiff and against the defendant, in an action brought for the cancellation of a contract, possession of real property, and for equitable relief. The defendant did not appeal from the judgment, but made a motion, pursuant to the provisions of section 663 of the Code of Civil Procedure, to have the judgment vacated and set aside and another and different judgment entered, on the ground that the conclusions of law were incorrect and erroneous and not consistent with or supported by the findings of fact. The motion was denied and the defendant appealed from the order denying the motion. The respondent now moves to dismiss the appeal upon the ground that the order appealed from is not an appealable order.

Section 663 of the Code of Civil Procedure provides that a judgment, when based on findings of fact made by the court, may, upon motion of the party aggrieved, be set aside and vacated by the same court, and another and different judgment entered when the conclusions of law are incorrect or erroneous, not consistent with or not supported by the findings. Section 663a provides that an order of the court granting a motion for a substituted judgment may be reviewed on appeal in the same manner as a special order made after final judgment. No

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provision is therein made for an appeal from an order denying the motion, but the decisions are to the effect that such an order is also appealable.

(Rahmel

v.

Lehndorff,

142 Cal. 681 [100 Am. St. Rep. 154, 65 L. R. A. 88, 76 Pac. 659];

Condon

v.

Donohue,

160 Cal. 749 [118 Pac. 113];

Westervelt

v.

McCullough,

64 Cal. App. 362 [221 Pac. 661];