gno.law

Freeman v. Brown

California Court of Appeal · Civ. No. 291. · 1906-07-12 · Published · 87 P. 204 · 4 Cal. App. 108 · 1906 Cal. App. LEXIS 67

J. W. FREEMAN, Respondent, v. ROBERT A. BROWN, Appellant

Proceeding
appeal from an order
Trial court
Superior Court of Los Angeles County
Trial judge
Walter Bordwell
Outcome
other — Motion t
Area
civil
Panel
Smith (author)

Analysis

No analysis yet. When one exists it is a model's reading of this opinion — the rulings it reviewed, whether it agrees with the court, and the authorities it checked — shown beside the court's own disposition, never in place of it. How analyses are made.

Opinion

The COURT.

This is an appeal from an order denying the defendant’s motion to amend his statement on motion for a new trial by inserting specifications therein. The plaintiff moves to dismiss the appeal on the ground that the order is not appealable.

Appellant by his motion and application sought relief under section 473, Code of Civil Procedure. The order denying such relief is appealable.

(Murphy v. Stelling, 138 Cal. 642, [72 Pac. 176];

Kaltschmidt v. Weber, 136 Cal. 675, [69 Pac. 497].)

Motion to dismiss is denied.

Concurrence — Smith

SMITH, J., Concurring.

I concur in the order denying the motion to dismiss the appeal in this ease, and also in the opinion that the decision in Murphy v. Stelling, 138 Cal. 642, [72 Pac. 176], is directly in point. But I regard that case as merely an application of the more general principle that *109 all orders made in proceedings for a new trial which have the effect of finally disposing of the motion are special orders made after final judgment, and therefore appealable. (Hayne on New Trial, sec. 146;

Calderwood v. Peyser, 42 Cal. 115, and cases cited;

McDonald v. McConkey, 57 Cal. 326;

Clark v. Crane, 57 Cal. 633;

Griess v. State Investment Co., 93 Cal. 411, [28 Pac. 1041];

Stonesifer v. Kilburn, 94 Cal. 42, [29 Pac. 332];

Sutton v. Symons, 97 Cal. 476, [32 Pac. 588] ; same case, 100 Cal. 576, [35 Pac. 158];

Symons v. Bunnell, 101 Cal. 223, [35 Pac. 770];

Kaltschmidt v. Weber, 136 Cal. 675, [69 Pac. 497];

Murphy v. Stelling, 138 Cal. 641, [72 Pac. 176].) This, however, as said in the ease last cited, will not apply to a mere refusal of the court to settle the statement in cases where the moving party is by law entitled to have it settled. In such a case there is no order, and, therefore, the only remedy is mandamus.

Cites, in this corpus