Dean v. Midland Farms Co. — 96 Cal. App. 214

Majority

p. 214

[Civ. No. 6509.

First Appellate District, Division One.

January 9, 1929.]

W. E. DEAN, Appellant, v. MIDLAND FARMS COMPANY (a Corporation) et al., Respondents.

John Anthony McGee for Appellant.

Robt. H. Schwab for Respondents.

This is an action to declare a trust and for an accounting. The cause was tried by the court without a jury and judgment was entered in favor of the plaintiff and against defendants. Upon motion by defendants, the court made its order granting a new trial, from which order plaintiff appeals.

Since the amendment in 1915 of section 963 of the Code of Civil Procedure, an order granting a new trial is no longer an appealable order except “in an action or proceeding tried by a jury where such trial by jury is a matter of right.” (McGoldrick v. Visalia Midway Oil Co., 58 Cal. App. 280 [ 208 Pac. 334 ]. See, also, Diamond v. Superior Court, 189 Cal. 732 , 739 [ 210 Pac. 36 ]; Furlow Pressed Brick Co. v. Balboa Land & Water Co., 186 Cal. 754 , 760 [ 200 Pac. 625 ]; Nason v. Shinjo, 72 Cal. App. 530 [ 137 Pac. 559 ].)

p. 215

This canse does not fall within the class of cases in which an appeal from an order granting a new trial is permitted.

The appeal is dismissed.

Tyler, P. J., and Knight, J., concurred.

Cases cited

McGoldrick v. Visalia Midway Oil Co. 58 Cal. App. 280 Cal. Dist. Ct. App. 1922-06-22 p. 214
Diamond v. Superior Court 189 Cal. 732 Cal. 1922-10-16 at 739 p. 214
Furlow Pressed Brick Co. v. Balboa Land & Water Co. 186 Cal. 754 Cal. 1921-08-29 at 760 p. 214
Nason v. Shinjo 72 Cal. App. 530 Cal. Dist. Ct. App. 1925-05-06 p. 214