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Blackburn v. Abila

4 Cal. Unrep. 982 Court Cal. Decision date 1895-03-11 Docket No. 19,299 English

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p. 982
BLACKBURN et al. v. ABILA.
No. 19,299;
March 11, 1895.
39 Pac. 797.

Headnote

Appeal—Time for Taking.—Where an Appeal is Taken' Before the determination of appellant’s motion for a new trial on account of a statute requiring appeals to be taken within a certain time after the rendition of the judgment, and a new trial is afterward granted by the trial court, the appeal will be dismissed.
Appeal—Costs.—In Such Case Appellant is entitled to costs on the appeal.
APPEAL from Superior Court, San Diego County; E. S. Torrance, Judge.
Action by B. T. Blackburn and others, directors of Fall-brook irrigation district, against H. B. Abila. There was a judgment for plaintiffs, and defendant appeals.
Dismissed.
Lee & Scott for appellant; Aitken & Smith and John R. Aitken for respondents.

Judgment was rendered for plaintiffs, and defendant, Abila, made a motion for a new trial, which was granted by the court below. From the order granting a new trial, plaintiffs appealed, and on that appeal this court affirmed the order granting the motion for a new trial: See Directors v. Abila (No. 19,368, this day decided), 106 Cal. 355 , 39 Pac. 794 . This present appeal was taken by the defendant, Abila, from the original judgment in favor of the plaintiffs. He was required by the statute to take the appeal within ten days after the rendition of the judgment, and it was accordingly taken before the motion for a new trial had been determined. The appeal was properly taken. As, however, the effect of the affirmance of the order granting a new trial has been to set aside the judgment, the only appropriate order that can now be made in the present appeal is to dismiss it. But under these circumstances the appellant is entitled to the costs of the appeal. The appeal from the judgment is dismissed, with costs to appellant.

Beatty, C. J., did not participate.

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