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Freeman v. Brown

4 Cal. App. 108 Court Second Appellate District. Decision date 1906-07-12 Docket Civ. No. 291 English

Decision Majority — The COURT. · Concurring — SMITH, J., Concurring.

Contents

Majority

p. 108
[Civ. No. 291.
Second Appellate District.
July 12, 1906.]
J. W. FREEMAN, Respondent, v. ROBERT A. BROWN, Appellant.

Headnote

New Trial—Statement—Excusable Omission of Specification—Refusal of Leave to Amend—Appealable Order.—An order denying a motion under section 473 of the Code of Civil Procedure for leave to amend a statement on motion for new trial by inserting specifications excusably omitted therefrom is appealable, and a motion to dismiss the appeal therefrom must be denied.
APPEAL from an order of the Superior Court of Los Angeles County denying a motion for leave to amend a statement on motion for a new trial. Walter Bordwell, Judge.
Motion to dismiss appeal.
The facts are stated in the opinion of the court.
George L. Keefer, and Walter L. Bowers, for Appellant.
H. M. Barstow, and Barstow & Variel, for Respondent.

This is an appeal from an order denying the defendant’s motion to amend his statement on motion for a new trial by inserting specifications therein. The plaintiff moves to dismiss the appeal on the ground that the order is not appealable.

Appellant by his motion and application sought relief under section 473, Code of Civil Procedure. The order denying such relief is appealable. (Murphy v. Stelling, 138 Cal. 642 , [ 72 Pac. 176 ]; Kaltschmidt v. Weber, 136 Cal. 675 , [ 69 Pac. 497 ].)

Motion to dismiss is denied.

I concur in the order denying the motion to dismiss the appeal in this ease, and also in the opinion that the decision in Murphy v. Stelling, 138 Cal. 642 , [ 72 Pac. 176 ], is directly in point. But I regard that case as merely an application of the more general principle that

Concurrence

p. 109
all orders made in proceedings for a new trial which have the effect of finally disposing of the motion are special orders made after final judgment, and therefore appealable. (Hayne on New Trial, sec. 146; Calderwood v. Peyser, 42 Cal. 115 , and cases cited; McDonald v. McConkey, 57 Cal. 326 ; Clark v. Crane, 57 Cal. 633 ; Griess v. State Investment Co., 93 Cal. 411 , [ 28 Pac. 1041 ]; Stonesifer v. Kilburn, 94 Cal. 42 , [ 29 Pac. 332 ]; Sutton v. Symons, 97 Cal. 476 , [ 32 Pac. 588 ] ; same case, 100 Cal. 576 , [ 35 Pac. 158 ]; Symons v. Bunnell, 101 Cal. 223 , [ 35 Pac. 770 ]; Kaltschmidt v. Weber, 136 Cal. 675 , [ 69 Pac. 497 ]; Murphy v. Stelling, 138 Cal. 641 , [ 72 Pac. 176 ].) This, however, as said in the ease last cited, will not apply to a mere refusal of the court to settle the statement in cases where the moving party is by law entitled to have it settled. In such a case there is no order, and, therefore, the only remedy is mandamus.

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