Westervelt v. McCullough

California Court of Appeal

Westervelt v. McCullough

221 P. 661, 64 Cal. App. 362, 1923 Cal. App. LEXIS 121

CourtCalifornia Court of Appeal

DecidedNovember 9, 1923

DocketCiv. No. 4403.

StatusPublished

Cited by13 cases

This text of 221 P. 661 (Westervelt v. McCullough) is published on Counsel Stack Legal Research, covering California Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Westervelt v. McCullough, 221 P. 661, 64 Cal. App. 362, 1923 Cal. App. LEXIS 121 (Cal. Ct. App. 1923).

Pincite

Opinion

FINLAYSON, P. J.

Respondent moves to dismiss the appeal, which was tak^ri from an order denying a motion made by defendant in the trial court under section 663 of the Code of Civil Procedure, namely, a motion in that court to set aside its judgment, amend its conclusions of law, and enter another and different judgment. No appeal has been taken from the judgment. Respondent claims that an order denying a motion to set aside the judgment and to enter *363 another and different judgment is not an appealable order. Hence her motion to dismiss this appeal.

An order denying a motion made under section 663 is unquestionably a specialorder made after final judgment, and as such is appealable under section 963—unless there be some good reason for holding otherwise. Because in section 663a the legislature expressly provided that an order granting such a motion may be reviewed on appeal in the same manner as a special order made after final judgment, respondent argues that, under the familiar rule of construction, expressio unius est exclusio alterius, it should be held that the lawmakers did not intend that there should be a right of appeal from an order denying the motion. To support this view respondent cites Modoc Co-operative Ass'n v. Porter, 11 Cal. App. 270 [104 Pac. 710], It is true that certain dicta may be found in the opinion in that case which seem to give color to respondent’s contention; but since that case was decided our supreme court has stated unequivocally that an order denying a motion made under section 663 is appealable under section 963, as a special order made after final judgment. (Bond v. United Railroads, 159 Cal. 270 [Ann. Cas. 1912C, 50, 48 L. R. A. (N. S.) 687, 113 Pac. 366] ; Condon v. Donohue, 160 Cal. 749 [118 Pac. 113].) The rule thus announced is binding here.

The motion to dismiss the appeal is denied.

Works, J., and Craig, J., concurred.

A petition for a rehearing of this cause was dismissed by the district court of appeal on December 4, 1923.

Free access — add to your briefcase to read the full text and ask questions with AI

FINLAYSON, P. J.

Respondent moves to dismiss the appeal, which was tak^ri from an order denying a motion made by defendant in the trial court under section 663 of the Code of Civil Procedure, namely, a motion in that court to set aside its judgment, amend its conclusions of law, and enter another and different judgment. No appeal has been taken from the judgment. Respondent claims that an order denying a motion to set aside the judgment and to enter *363 another and different judgment is not an appealable order. Hence her motion to dismiss this appeal.

An order denying a motion made under section 663 is unquestionably a specialorder made after final judgment, and as such is appealable under section 963—unless there be some good reason for holding otherwise. Because in section 663a the legislature expressly provided that an order granting such a motion may be reviewed on appeal in the same manner as a special order made after final judgment, respondent argues that, under the familiar rule of construction, expressio unius est exclusio alterius, it should be held that the lawmakers did not intend that there should be a right of appeal from an order denying the motion. To support this view respondent cites Modoc Co-operative Ass'n v. Porter, 11 Cal. App. 270 [104 Pac. 710], It is true that certain dicta may be found in the opinion in that case which seem to give color to respondent’s contention; but since that case was decided our supreme court has stated unequivocally that an order denying a motion made under section 663 is appealable under section 963, as a special order made after final judgment. (Bond v. United Railroads, 159 Cal. 270 [Ann. Cas. 1912C, 50, 48 L. R. A. (N. S.) 687, 113 Pac. 366] ; Condon v. Donohue, 160 Cal. 749 [118 Pac. 113].) The rule thus announced is binding here.

The motion to dismiss the appeal is denied.

Works, J., and Craig, J., concurred.

A petition for a rehearing of this cause was dismissed by the district court of appeal on December 4, 1923.

Cite This Page — Counsel Stack

Bluebook (online)

221 P. 661, 64 Cal. App. 362, 1923 Cal. App. LEXIS 121, Counsel Stack Legal Research, https://law.counselstack.com/opinion/westervelt-v-mccullough-calctapp-1923.

Opinion

Related

Cite This Page — Counsel Stack