Winchester v. General Cab Co.

ROTH, J., pro tem. There are two appeals in this case which will be considered together, the first, 10384, and the second, 10348. In 10384, Mercer Casualty Company, one of the defendants in the trial court (referred to herein as Casualty Company) is the respondent, and the Winchesters are appellants. This is an appeal from an ancillary order made in proceedings initiated by Casualty Company to vacate a judgment and enter a new and different judgment. In 10348, Casualty Company is appellant and the Winchesters are respondents. This is an appeal from the order denying Casualty Company’s motion to vacate judgment and enter a new and different judgment. Heretofore, Casualty Company had appealed from the judgment rendered against it in this case, which appeal was dismissed as it was not perfected in time. (Winchester v. General Cab Co., 8 Cal. App. (2d) 360 [47 Pac. (2d) 1116].)

The appeal in 10384 will be considered first for the reason that it is before us at this time on a motion to dismiss.

On October 4, 1934, respondent Casualty Company, having theretofore suffered 'a default judgment against itself which was entered in the above-entitled action, served a notice of motion to vacate the judgment and enter different and distinct judgment under authority of sections 663 and 663a of the Code of Civil Procedure. The notice, however, did not, as required by said sections, specify “the particulars in which the conclusions of law are not consistent with the finding of fact . . . ” Thereafter, a motion was made, pursuant to the notice thereof and submitted. During the submission and on December 20, 1934, respondent served and filed another “notice of motion for leave to vacate submission of motion to vacate judgment and enter different and distinct judgment, and for leave to further argue said motion”, the purpose of which was to correct and amend the defects in the first notice of motion and the motion pursuant thereto.

[553]The second motion was heard over appellants’ objection on December 26, 1934, and granted. On the same day and at the same time, the first motion as amended by the second was denied. This appeal is from the order permitting respondent to file amendments to its first motion. Respondent moves to dismiss the appeal, because the original motion was lost by respondent and the appeal from the order is therefore moot, and also for the reason that the order thus appealed from is not an appealable order. Section 963 of the Code of Civil Procedure sets forth the orders and judgment from which an appeal may be taken. The order herein appealed from is not one of those specifically mentioned, and may be considered as an appealable order only if it is included in the language “special order made after final judgment” set forth in said section. What is a “special order made after final judgment” has been defined by the decisions. A definition enunciated upon analogous facts is set forth in the case of Kaltschmidt v. Weber, 136 Cal. 675, 677 [69 Pac. 497], wherein the court says: