Kimple v. Conway

10 P. 189, 69 Cal. 71, 1886 Cal. LEXIS 628

• Court: California Supreme Court
• Decided: March 9, 1886
• Docket: No. 9700
• Status: Published

Opinion

Thornton, J.

Motion to dismiss appeals taken by the plaintiff. The notice of appeal is as follows:—

“You will please take notice that the plaintiff in the above-entitled action hereby appeals to the Supreme Court of the state of California, from the judgment or order of nonsuit in the above-entitled cause, also order dissolving preliminary injunction in said 'cause therein entered in the said Superior Court on the eighth day of February, 1884, in favor of the defendants in said action and against said plaintiff, and from the whole thereof.

“ Also overruling and denying plaintiff’s motion to set aside said judgment or order of nonsuit, and dissolving plaintiff’s preliminary injunction, and for granting a rehearing therein, entered in said Superior Court on the 21st of May, A. D. 1884, in favor of said defendants in said action and against said plaintiff.”

1. There is no appeal allowed by law from an order of nonsuit. Nor does the law allow an appeal from a judgment of nonsuit. If it should he urged that the judgment of nonsuit is the final judgment from which an appeal is allowed, the plain reply is that the transcript does not show that a final judgment has ever been entered. No appeal can he taken from a final judgment until it has been entered. (McLaughlin v. Doherty, 54 Cal. 519; Thomas v. Anderson, 55 Cal.43.)

2. The transcript contains no order dissolving an injunction. On appeal from that order the order must be furnished in the transcript. (Code Civ. Proc.,sec. 951. )

3. The third appeal mentioned in the notice of appeal we are of opinion is an appeal from an order denying a new trial. The notice of appeal states it as an appeal from overruling and denying plaintiff’s motion for granting a rehearing. Such a rehearing can signify nothing else than a new trial, for the only mode of rehearing the cause is by a new trial. That the word “ rehearing ” is used here in the sense “ new trial ” is borne out by the use of the words in the notice of intention to move for “a rehearing or new trial.” These words, “rehearing” and “new trial,” are there used as synonymous. If further appears that the court below so understood these words, treated this notice as a notice of motion for a new trial, and denied it.

The only remaining objection to the appeals is that the transcript does not contain the complete judgment roll, Of this judgment roll a copy of the final judgment is wanting. On appeal from an order denying a motion for a new trial, the judgment roll must be in the transcript. (Code Civ. Proc., secs. 661, 952.)

The appeal from the order of nonsuit and judgment of nonsuit is dismissed.

The other appeal will stand dismissed unless appellant shall furnish at the hearing of this cause copies of the papers above designated as wanting in the transcript certified and attested in the mode required by law.

The other questions made on the argument are reserved until the hearing of the cause. They do no_t properly come before us until such hearing.

Ordered accordingly.

McKee, J., and Sharpstein, J., concurred.