Lambert v. Marcuse

CHIPMAN, C.

Foreclosure of street assessment lien. Plaintiff had judgment, and defendants appeal from the order denying motion for a new trial.

Defendants demurred to the complaint for insufficiency, and also on the ground of ambiguity and uncertainty. There is no appeal from the judgment, and the rule is, that the sufficiency of the complaint canno-t be considered on an appeal from an order denying a motion for a new trial.

(Onderdonk

v.

San Francisco,

75 Cal. 534;

Wheeler v. Kassabaum,

76 Cal. 90;

Evans

v.

Paige, 102

Cal. 132;

Bode

v.

Lee, 102

Cal. 583.)

[45]

Appellant cites

Holland

v.

McDade,

125 Cal. 353, (at page 356,) where it is said: “An appeal from an order denying a motion for a new trial is neither more nor less than a direct attack upon the judgment. This is its sole aim and purpose." And so it is in respect of certain consequences which flow from a reversal of the order,—for the judgment having no longer any support necessarily falls. But the proposition is not true as meaning that an appellant can have all the relief he may wish, in all cases, on an appeal from the order without appealing from the judgment. The question in

Holland

v.

McDade