Hamilton v. Carpenter

126 P.2d 397, 52 Cal. App. 2d 449, 1942 Cal. App. LEXIS 303

• Court: California Court of Appeal
• Decided: June 2, 1942
• Docket: Civ. No. 13474
• Status: Published

Opinion

McCOMB, J.

Defendants attempt to appeal from an order denying a motion to strike an affidavit filed by plaintiff in opposition to defendants’ motion to set aside a sale of real property pursuant to a decree foreclosing a deed of trust.

This is the sole question for our determination:

Is a ruling upon the admissibility of evidence which is to be used in determining a motion to set aside a sale of real property pursuant to a decree of foreclosure of a deed of trust cm appealable order under the terms of section 963, subdivision 2, of the Code of Civil Procedure?

This question must be answered in the negative. The law is established in California that a ruling either admitting or rejecting evidence to be used in connection with a special proceeding after a final judgment is not a ‘.‘special order made after final judgment” within the meaning of section 963, subdivision 2, of the Code of Civil Procedure. (Watson v. Pryor, 49 Cal. App. 554, 557 [193 Pac. 797].)

Therefore, since in the present case the order from which defendants attempt to appeal was merely a ruling upon the admissibility of evidence, such ruling was a nonappealable order and the purported appeal should be and it is hereby dismissed.

Moore, P. J., and Wood (W. J.), J., concurred.