Mitchell v. California & Oregon Steamship Co.

[732]

LORIGAN, J.

This is a motion to dismiss an appeal by defendant from what is claimed to be two orders of court, one granting the motion of plaintiff to vacate and set aside an order made by the court extending the time of defendant to serve its statement on motion for a new trial, and the other denying the motion of defendant to be relieved, under section 473 of the Code of Civil Procedure, from the objection of plaintiff to the settlement of the proposed statement on motion for a new trial on the ground that it had not been served within time. Both these orders were embraced within a single minute order of the court.

On the assumption that the appeal is taken from two separate and distinct orders, respondent moves to dismiss it, because but one undertaking on appeal for costs was filed, and this did not distinctly refer to either appeal.

(Centerville etc. Co.

v.

Bachtold,

109 Cal. 113, [41 Pac. 813];

Matter of Heydenfeldt,

119 Cal. 347, [51 Pac. 543];

Wadleigh

v.

Phelps,

147 Cal. 141, [81 Pac. 418].)

Appellant insists that what is asserted to be two orders is really but a single order; that the only proceeding before the court in which the minute order appealed from was made was the application of appellant for relief, under which he conceded the invalidity of the order extending time which the respondent had moved to set aside for want of jurisdiction in the court to make it; admitted that the objection on that ground was good, confessed default with reference to service of his statement, and asked to be relieved from it, and that the denial of this relief was the real and only effect of the minute order.

We do not deem it necessary to consider the argument of the respective counsel as to the real effect of what are apparently two orders, because, in the light of existing legislation providing different methods in which appeals may be taken, if the steps which were taken on the appeal here are sufficient under either method, that is all that is required to give this court jurisdiction of it.