Gilman v. Bootz

22 P. 255, 80 Cal. 564, 1889 Cal. LEXIS 959

• Court: California Supreme Court
• Decided: September 21, 1889
• Docket: No. 12278
• Status: Published

Opinion

Hayne, C.

This is an appeal from a judgment of dismissal for want of prosecution. From papers printed in the transcript, it is to be surmised that the defendant moved to dismiss the action for want of prosecution; that this motion was granted; that thereafter the plaintiff moved to have the order for dismissal set aside; that this latter motion was denied, and that thereafter a judgment of dismissal was recorded. The appeal is not from the orders, but is from the j udgment. Thea ppellant seeks to have the orders reviewed as intermediate, non-appeal-able orders affecting the merits, etc. But in order so to review them, it is essential that there should be a bill of exceptions. (Douglas v. Dakin, 46 Cal. 51; Stoddart v. Burge, 53 Cal. 398; Welsh v. Allen, 54 Cal. 211; Hayne on New Trial and Appeal, sec. 262.) And there is no bill of exceptions. Even if the orders were themselves the subject of appeal, and an appeal had been taken from them, it would have been necessary to identify the papers used on the hearing (Pardy v. Montgomery, 77 Cal. 326); and there was no such identification.

We therefore advise that the judgment be affirmed.

Foote, C., and Gibson, C., concurred.

The Court.

For the reasons given in the foregoing opinion, the judgment is affirmed.