Schomaker v. Roemer , 54 Cal. App. 258 ( 1921 )

This is an appeal by the plaintiff from a judgment in favor of the defendants in an action to quiet title.

There were two trials of this cause. Upon the first trial thereof the court on October 10, 1916, rendered and entered its judgment in the plaintiff's favor, but thereafter and on January 2, 1917, made an order granting the defendant's motion for a new trial. No appeal was or could have been taken from this order, since appeals from orders granting motions for new trials in cases of this character were abolished by the amendment of section 963 of the Code of Civil Procedure made in 1915 (Stats. 1915, p. 20). A retrial was had of the cause, at the conclusion of which the court on May 19, 1920, rendered and entered its judgment in favor of the defendants. The plaintiff did not move for a new trial but appealed directly from this judgment, and the only point which the appellant urges upon this appeal is that the trial court was in error in making its order granting the defendant's motion for a new trial after the first judgment in the case.

[1] It is unnecessary to consider the merits of this contention, since the order of the trial court vacating the first judgment and granting a new trial is not reviewable upon an appeal from the second judgment rendered and entered upon the retrial of the cause for the reasons fully set forth by the supreme court in its recent decision of Furlow Pressed BrickCo. v. Balboa L. W. Co., 186 Cal. 754, [200 P. 625], reading in part as follows: "While the second sentence of section 956, Code of Civil Procedure, as amended in 1915, providing that the court may on an appeal from the judgment review any order on motion for a new trial, is broad enough, considered alone, to justify the court in reviewing the order granting a new trial in every case, we think it apparent from the entire context and purpose of section 956, taken in connection with the scheme for appeal adopted by the legislature in 1915, that it was not intended that any order granting a new trial should be reviewed unless it affects the second judgment, and where the entire case is tried de novo the order granting a new trial could not affect the judgment however much it might affect the parties to the action."

No other point being urged upon this appeal, the judgment is affirmed.

Kerrigan, J., and Waste, P. J., concurred.