Stafford v. Realty Bond Service Corp.

266 P.2d 612, 123 Cal. App. 2d 352, 1954 Cal. App. LEXIS 1190

• Court: California Court of Appeal
• Decided: February 18, 1954
• Docket: Civ. No. 19916
• Status: Published

Opinion

McCOMB, J.

This is a motion to dismiss an appeal from a minute order denying plaintiff’s motion to vacate and set aside a final judgment.

Facts: May 31, 1950, judgment was entered in favor of defendant. Plaintiff thereupon appealed and the Supreme Court on October 28, 1952, affirmed the judgment of the trial court. (Stafford v. Realty Bond Service Corp., 39 Cal.2d 797 [249 P.2d 241].) A subsequent petition for rehearing by the Supreme Court was denied November 25, 1952.

On February 2, 1953, plaintiff made a motion in the superior court to vacate and set aside the judgment entered May 31, 1950, which motion was denied.

Question: Is the instcmt order cm appealable order?

No. If the grounds upon which a party seeks to have a judgment vacated existed before the entry of judgment and before the time for appeal has elapsed, the aggrieved party’s remedy is by a motion for new trial or by an appeal from the judgment, and an order thereafter made denying a motion to set the judgment aside is nonappealable. (Reynolds v. Reynolds, 191 Cal. 435, 437 [216 P. 619]; People v. Ramirez, 139 Cal.App. 380, 383 [4] [33 P.2d 848].)

The motion is granted and the appeal is dismissed.

Moore, P. J., and Fox, J., concurred.

A petition for a rehearing was denied March 5, 1954, and appellant’s petition for a hearing by the Supreme Court was denied April 14, 1954.