gno.law

Westervelt v. McCullough

California Court of Appeal · Civ. No. 4403. · 1923-11-09 · Published · 221 P. 661 · 64 Cal. App. 362 · 1923 Cal. App. LEXIS 121

EMMA J. WESTERVELT, Respondent, v. NORA McCULLOUGH, Appellant

Area
civil
Panel
Frank G. Finlayson (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 — Finlayson

FINLAYSON, P. J.

Respondent moves to dismiss the appeal, which was tak^ri from an order denying a motion made by defendant in the trial court under section 663 of the Code of Civil Procedure, namely, a motion in that court to set aside its judgment, amend its conclusions of law, and enter another and different judgment. No appeal has been taken from the judgment. Respondent claims that an order denying a motion to set aside the judgment and to enter *363 another and different judgment is not an appealable order. Hence her motion to dismiss this appeal.

An order denying a motion made under section 663 is unquestionably a specialorder made after final judgment, and as such is appealable under section 963—unless there be some good reason for holding otherwise. Because in section 663a the legislature expressly provided that an order granting such a motion may be reviewed on appeal in the same manner as a special order made after final judgment, respondent argues that, under the familiar rule of construction, expressio unius est exclusio alterius, it should be held that the lawmakers did not intend that there should be a right of appeal from an order denying the motion. To support this view respondent cites Modoc Co-operative Ass'n v. Porter, 11 Cal. App. 270 [104 Pac. 710], It is true that certain dicta may be found in the opinion in that case which seem to give color to respondent’s contention; but since that case was decided our supreme court has stated unequivocally that an order denying a motion made under section 663 is appealable under section 963, as a special order made after final judgment.

(Bond v. United Railroads, 159 Cal. 270 [Ann. Cas. 1912C, 50, 48 L. R. A. (N. S.) 687, 113 Pac. 366] ;

Condon v. Donohue, 160 Cal. 749 [118 Pac. 113].) The rule thus announced is binding here.

The motion to dismiss the appeal is denied.

Works, J., and Craig, J., concurred.

A petition for a rehearing of this cause was dismissed by the district court of appeal on December 4, 1923.

Cites, in this corpus

Cited by