Linn v. Weinraub

BARTLETT, J. pro tern. The appeal in this action was taken from the following proceedings in the trial court:

1. A judgment entered in the action on December 23, 1946, in favor of the defendants and respondents and against the plaintiffs and appellants.

2. An order made on December 24, 1946, in which the court denied plaintiffs’ motion to fix bond on appeal.

3. An order made on the 24th day of December, 1946, in which the court granted the motion of the defendants for an order denying a stay of execution.

[1104]. A minute order made on the 11th of March, 1947, denying plaintiffs’ motion for a new trial.

5. A written order made and filed March 12, 1946, denying plaintiffs’ motion for a new trial and granting defendants’ motion for a new trial on the ground of newly discovered evidence for the sole purpose of fixing and allowing to the defendants an additional sum for attorneys’ fees.

This appeal which we are considering is the second appeal which appellants have filed from the same judgment of December 23, 1946. This court dismissed this prior appeal on March 24, 1947, Civil No. 15868, L. A. 20028. The order of dismissal was not made without prejudice to another appeal.

Section 955 of the Code of Civil Procedure reads as follows:

“The dismissal of an appeal is in effect an affirmance of the judgment or order appealed from unless the dismissal is expressly made without prejudice to another appeal.” (See also Thomas v. Superior Court, 6 Cal.App. 629 [92 P. 739] ; Howard v. Howard, 87 Cal.App. 20 [261 P. 714]; Title Ins. & Trust Co. v. Wilson, 87 Cal.App. 143 [261 P. 767]; Smith v. Superior Court, 21 Cal.App.2d 160 [69 P.2d 176].)

As the effect of the order of dismissal herein was affirmance of the judgment, no second appeal from the same judgment can be maintained.

It is manifest that the matters involved in the orders of December 24, 1946, have now become moot and also that no appeal lies from an order denying a motion for a new trial.

This leaves before us for determination the sole question of the order granting respondents’ motion for a new trial on the issue of attorneys’ fees. The court’s order was that respondents’ motion for a new trial “be and the same is hereby granted for the sole purpose of fixing and awarding to the defendants an additional sum for the reasonable value of legal services rendered by the attorneys for the defendants herein.” An examination of the affidavits upon which the motion was based, and also an examination of the recital of the services rendered set forth in respondents’ brief, from page 20 to page 23, inclusive, shows that all of the services for which additional fees were asked were rendered after the date of the judgment. The judgment had awarded respondents the sum of $250 as attorneys’ fees, which award was made by virtue of the following provisions of the lease which was the subject of the action: