Rankin v. Central Pacific R.R. Co. , 73 Cal. 96 ( 1887 )

The COURT. — The appeal of the Southern Pacific Coast Railroad Company from the order of the court below granting a new trial is unauthorized, and must be dismissed, because not taken by "a party aggrieved." (Code Civ. Proc., sec. 938.)

The order in express terms grants a new trial only to the moving party, i.e., the Central Pacific Railroad Company. For the purpose of determining the scope and effect of an order granting a new trial, we look at the moving papers as well as the language of the order. In this case appellant had judgment in its favor against plaintiff, and plaintiff recovered judgment against appellant's co-defendant, — the Central Pacific Railroad Company. The latter moved for a new trial, which motion was granted in an order, of which the following is a copy: "It is hereby ordered that the verdict and judgment heretofore rendered and entered herein be and the same are hereby vacated and set aside, and that a new trial be granted the moving party herein, upon its payment to plaintiff of his costs of the former trial." This order of the court granting a new trial did not, and could not, affect the judgment in favor of the Southern Pacific Coast Railroad Company.

Appeal dismissed.