Wight v. Rohlffs

KNIGHT, J. The above-entitled cause was tried by the court sitting without a jury and judgment entered in favor of defendant. Thereafter plaintiff moved for and was granted a new trial upon the ground of insufficiency of evidence. Defendant appealed, and plaintiff now moves to dismiss the appeal upon the ground that the action was one in which defendant was not entitled as a matter of right to a trial by jury, and that consequently, under section 963 of the Code of Civil Procedure, the order granting the new trial is not appealable.

Subdivision 2 of said code section, as amended in 1933, provides: “An appeal may be taken from a superior court in the following cases: 2. Prom. an order granting a new trial . . . where a trial by jury is a matter of right. [732]...” It follows, therefore, that in an action wherein a trial by jury is not a matter of right, no appeal lies from an order granting a new trial; and it is fundamental that an equitable proceeding is such an action. At the time the motion to dismiss came on for hearing the transcript on appeal had not been completed, and said motion was presented on a record consisting of the county clerk’s certificate setting forth certain matters appearing of record in the action, annexed to which were copies of the pleadings in the action, consisting of the second amended complaint, the answer thereto, and an amendment to the answer; also copies of the minute order granting the new trial, the notice of appeal, and certain affidavits. After the motion was argued and submitted the transcripts on appeal prepared by the county clerk and the phonographic reporter were presented to the clerk of this court for filing. It is well settled, however, that the question of whether an action involves legal issues or issues of equitable cognizance must be determined from the pleadings and the facts alleged therein. (Davis v. Judson, 159 Cal. 121 [113 Pac. 147] ; Woolsey v. Woolsey, 121 Cal. App. 576 [9 Pac. (2d) 605]) ; and inasmuch as copies of all of the pleadings were incorporated in the clerk’s certificate filed in support of the motion, the transcripts on appeal serve no useful purpose in the determination of the merit of said motion.

Turning then to the pleadings, the second amended complaint alleges that on June 6, 1917, plaintiff and Patrick Cahill became the sole owners of the real estate and farm in controversy; that plaintiff owned an undivided one-third interest therein, but that the legal title to said property was vested in Patrick Cahill; that plaintiff originally invested $4,641.98 in said property, and on December 9, 1918, for the purpose of protecting plaintiff’s interest therein in the event of the death of either party, the said Cahill executed and delivered to plaintiff a written memorandum to the effect that Cahill held one-third of said property in trust for plaintiff, subject to certain encumbrances, and subject to an accounting between them; that on or about May 1, 1921, it was agreed between plaintiff and said Cahill that said Cahill would continue to operate the business of said farm and that he would dispose of it when a profitable dis-, posal of same could be made, and would then account to