Pendegast v. Knox

32 Cal. 73

• Court: California Supreme Court
• Decided: July 1, 1867
• Status: Published

Opinion

By the Court, Rhodes, J.:

The defendants have appealed from the order refusing to amend an order previously made, allowing defendants “ twenty days time in which to move for a new trial,” so as to read “ twenty days time to file statement on motion for a new trial herein.”

Also, from the order striking out a statement prepared and filed by defendants on motion for a new trial herein.

The question which first arises, and which, though not presented by the respondents, must of necessity be passed on before proceeding to investigate the other questions in the case, is whether the Court has jurisdiction of the appeal.

The solution of the question depends upon whether the orders can be regarded as special orders made after final judgment, within the meaning of sections three hundred and thirty-six and three hundred and forty-seven of the Practice Act. In Ketchum v. Crippen, 31 Cal. 365, it was held that the order refusing to strike out the statement, on motion for new trial, was not a “ special order made after final judgment,” within the meaning of those sections'? that whether it did or did not follow the judgment in point of time, it did not follow it in logical sequence, or in any way depend upon it, and that, therefore, no appeal lay from the order. The orders in this case are of the same character as the one in that case, and that case is decisive of this. (See, also, Leffingwell v. Griffing, 29 Cal. 193 ; Peck v. Courtis, 31 Cal. 207.)

Appeal dismissed.