Majority
This is an action against the district attorney o.f San Diego County and others for damages alleged to have been sustained by plaintiffs by reason of the unlawful arrest and detention of the minor child of plaintiffs. The American Bonding Company, a corporation, is joined as a defendant upon allegations that it is surety upon an official bond given by the district attorney for the faithful performance of his duties as such officer.
The demurrer of said bonding company to the complaint was sustained without leave to amend on December 3, 1934. A motion hj^ said company to strike passages of said complaint was presented on December 4, 1934, and a written order made and filed on December 18, 1934, granting said motion. Pursuant to the order sustaining the demurrer, judgment of dismissal of the action as against said company was entered December 5, 1934; notice whereof was given to plaintiffs’ counsel December 16, 1934. Notice of intention
Said bonding company now moves to dismiss the appeal upon the ground that the appeal was not taken within sixty days from the date of entry of the judgment, as prescribed by section 939, Code of Civil Procedure. Said section also provides that, in cases where proceedings upon motion for a new trial are pending, the time for appeal from the judgment shall not expire until thirty days after entiy in the trial court of the order determining such motion.
Appellants contend that the making and consideration of the motion for new trial operated to give them the additional thirty days within which to appeal from the judgment; and in support of their position rely upon Quist v. Michael, 153 Cal. 365 [ 95 Pac. 658 ], and Quist v. Sandman, 154 Cal. 748 [ 99 Pac. 204 ]. Said decisions grow out of the same appeal. In said case the appeal was from the judgment and from an order denying a motion for a new trial. There the trial was upon an agreed statement of facts, with a stipulation waiving findings. The Supreme Court, refusing to dismiss the appeal from the order denying the motion for new trial, affirmed said order. This was done without a consideration of the merits of the appeal from the order. The judgment on appeal from said order proceeded upon the theory that, the trial court having actually passed upon the motion for new trial notwithstanding that the facts were established by the statement, the proper order on appeal was an affirmance of the order denying a new trial rather than a dismissal.
The essence of appellants’ position is that a new trial may consist of a reexamination of questions of law as well as a reexamination of questions of fact. This is contrary to accepted conceptions of law and to the language of section 656 of the Code of Civil Procedure. The demurrer raised questions of law. (See. 589, Code Civ. Proc.; Brennan v. Ford, 46 Cal. 7 ; Philip v. Durkee, 108 Cal. 300 [ 41 Pac. 407 ].) The order sustaining the demurrer was not an appealable order, nor was the order granting the motion to strike.
The motion to dismiss the appeal is granted.
Barnard, P. J., and Marks, J., concurred.
A petition- by appellant to have the cause heard in the Supreme Court, after judgment in the District Court of Appeal, was denied by the Supreme Court on August 22, 1935.
Cases cited
- Quist v. Sandman 154 Cal. 748 p. 103
- Brennan v. Ford 46 Cal. 7 p. 103
- Philip v. Durkee 108 Cal. 300 p. 103
- Bryant v. Kelly 203 Cal. 721 p. 104
- Wood, Curtis & Co. v. Mo. Pac. Ry. 152 Cal. 344 p. 104
- Gray v. Cotton 174 Cal. 256 p. 104
- Kenney v. Kenney 220 Cal. 134 p. 104
- Williams v. Long 130 Cal. 58 p. 104
- Lancel v. Postlethwaite 172 Cal. 326 p. 104
- Lawson v. Guild 215 Cal. 378 p. 104
- Kocher v. Fidelity & Deposit Co. 137 Cal. App. 474 p. 104
- Bley v. Board of Dental Examiners 101 Cal. App. 666 p. 104