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Symons v. Bunnell

101 Cal. 223 Court Department Two. Decision date 1894-01-31 Docket No. 18178 English

Delivered by De Haven, J.

Contents

Majority

p. 223
[No. 18178.
Department Two.
January 31, 1894.]
WILLIAM SYMONS, Respondent, v. E. F. BUN-NELL et al., Appellants.

Headnote

New Trial—Order Striking out Statement—Appeal—Dismissal.—An order striking a statement on motion for a new trial from the files is a special order made after judgment, and if the appeal therefrom is not taken within sixty days from its date, it must be dismissed.
Id.—Order Repusing to Vacate Appealable Order.—No appeal lies from an order refusing to vacate an appealable order, and such an appeal must be dismissed.
Id.—Order Denting New Trial—Absence op Statement.—In the absence of a statement on motion for a new trial the motion is properly denied, and the order denying the motion must be affirmed;
Appeal from an order of the Superior Court of Tuolumne County denying a motion for new trial, and from an order striking appellant’s statement on motion for a new trial from the files, and from an order refusing to vacate such order.
The facts are stated in the opinion of the court.
Moses G. Cobb, and J. B. Curtain, for Appellants.
F. D. Nicol, for Respondent.

The order of September 16, 1891, striking the appellant’s statement on motion for a new trial from the files is a special order made after judgment, and the appeal therefrom not having been taken within sixty days from its date must be dismissed. (Sutton v. Symons, 97 Cal. 475 .) The order referred to being itself an appealable order {Calderwood v. Peyser, 42 Cal. 113 ; Clark v. Crane, 57 Cal. 633 ) no appeal lies

p. 224
from the order refusing to vacate it, and the appeal from this latter order must also he dismissed.

In the absence of the statement the motion for a new trial was properly denied. (Sutton v. Symons, 100 Cal. 576 .)

Order denying the motion for a new trial affirmed. The appeals from the order of September 16, 1891, striking the statement from the files, and from the order refusing to vacate the same are dismissed.

McFarland, X,, and Fitzgerald, X, concurred.

Hearing in Bank denied.

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