Majority
p. 98No. 7,612. Department Two November 14, 1884. GEORGE F. SHARP, Respondent, v. THOMAS S. MILLER, Appellant.
Headnote
Appeal—Effect of Reversal—Order after Final Judgment.—Where the appellate court reverses a judgment and order denying a motion for a new trial, without remanding the case for further proceedings, the parties are placed in the lower court in the same position as if the case had never been tried, with the exception that the opinion of the appellate court must be followed in the new trial; and an order thereafter made refusing to strike from the files an amended complaint is not an order made after final judgment, and is not appealable.
p. 99
Appeal from an order of the Superior Court of the city and county of San Francisco, refusing to strike from the files an amended complaint.
When the cause was before the appellate court, heretofore ( 54 Cal. 829 ), the court reversed the judgment and order denying the motion for a new trial, but did not remand it for further proceedings. Subsequently the plaintiff filed an amended complaint, and the defendant asked that it be stricken from the files; which motion was denied, and the defendant appealed from that order.
P. B. Ladd, and Frederick S. Stratton, for Appellant.
Wm. H. Sharp, for Respondent.
-The order appealed from in this case is not appealable. The appellant contends that it is a special order made after final judgment. The judgment formerly rendered was reversed, and there was no judgment in the cause, when the order appealed from was made. The reversal of the judgment and order denying (lie motion for a new trial when the cause was here before (see 54 Cal. 829 ), placed the parties in the lower court in the same position as if the case had never been tried, with the exception that the opinion of this court must be followed so far as applicable in the new trial. (Stearns v. Aguirre, 7 Cal. 447 .)
Appeal dismissed.