Blackburn v. Abila

PER CURIAM. Judgment was rendered for plaintiffs, and defendant, Abila, made a motion for a new trial, which was granted by the court below. From the order granting a new trial, plaintiffs appealed, and on that appeal this court affirmed the order granting the motion for a new trial: See Directors v. Abila (No. 19,368, this day decided), 106 Cal. 355, 39 Pac. 794. This present appeal was taken by the defendant, Abila, from the original judgment in favor of the plaintiffs. He was required by the statute to take the appeal within ten days after the rendition of the judgment, and it was accordingly taken before the motion for a new trial had been determined. The appeal was properly taken. As, however, the effect of the affirmance of the order granting a new trial has been to set aside the judgment, the only appropriate order that can now be made in the present appeal is to dismiss it. But under these circumstances the appellant is entitled to the costs of the appeal. The appeal from the judgment is dismissed, with costs to appellant.

Beatty, C. J., did not participate.