Wright v. Wright

California Court of Appeal Feb 14, 1941 No. Civ. No. 2617Published

Before: Marks

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Holding. The court dismissed the appeal because the order denying a motion for a new trial is non-appealable and the proceedings for the preparation of the transcript were terminated by the trial court.

Issues

Whether an order denying a motion for a new trial is appealable.
Whether an appeal should be dismissed when proceedings for the preparation of a transcript have been terminated.

Disposition. Dismissed

Quotations verified verbatim against the opinion

“Such an order is not appealable.”

“there are no proceedings pending for the settlement of a bill of exceptions, or transcript on appeal.”

“The appeal is dismissed.”

MARKS, J. This is a motion to dismiss the appeal from a judgment, and from an order denying the motion for new trial. Such an order is not appealable. (Code Civ. Proc., see. 963.)

There is nothing on file here other than the moving papers and the certificate of the county clerk, from which it appears that the motion for new trial was denied on April 27, 1940; that notice of its denial was filed on April 29, 1940; that notice of appeal and notice to prepare the transcript were filed on May 8, 1940; that on September 17, 1940, the trial court terminated the proceedings for preparation of transcript; that there are no proceedings pending for the settlement of a bill of exceptions, or transcript on appeal.

[47]Under such circumstances the motion must be granted. (Bales v. Metropolitan Casualty Ins. Co., 3 Cal. App. (2d) 43 [38 Pac. (2d) 799] ; Carrasco v. Marcus, 18 Cal. App. (2d) 96 [62 Pac. (2d) 1405]; Olinger v. Pacific Greyhound Lines, 18 Cal. App. (2d) 104 [62 Pac. (2d) 1406].)

The appeal is dismissed.

Barnard, P. J., and Griffin, J., concurred.

Wright v. Wright

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