Hibernia Savings & Loan Society v. Cochran — 6 Cal. Unrep. 821

Majority

p. 821

HIBERNIA SAVINGS AND LOAN SOCIETY v. COCHRAN et al.^[1]

S. F. No. 2853;

November 21, 1901.

66 Pac. 732.

Headnote

Judgment—Motion to Vacate—Appeal.—Where on Appeal from the Denial of defendant’s motion to vacate the judgment, respondent moves to dismiss on the ground that the order is not appealable, because the judgment is itself appealable, the motion will be denied, since whether the grounds relied on for the appeal would have been available on an appeal from the judgment involves an examination of the record.

Judgment—Appeal from Order Refusing to Vacate.—Under Code of Civil Procedure, section 939 (3), authorizing an appeal from a special order made after judgment, an appeal lies from an order refusing to vacate a judgment.

APPEAL from Superior Court,' City and County of San Francisco; J. M. Seawell, Judge.

Action by the Hibernia Savings and Loan Society against Leon H. Cochran and others. From an order denying a motion to vacate the judgment, and to set aside default and appearance of the defendant Cochran, and to dismiss the action, he appealed. Motion to dismiss the appeal. Motion denied.

A. Boyer for appellant; Tobin & Tobin for respondent.

Motion to dismiss appeal. Judgment was rendered herein February 2, 1901, and thereafter appellant gave notice of a motion to vacate the judgment, and to set aside default and appearance of the defendant Cochran, and to dismiss the action. Upon the hearing the court denied the motion. The appeal herein is from this order. The respondent has moved to dismiss the appeal upon the ground that the order is not appealable; that the appeal is from an order refusing to vacate a judgment which is itself appeal-able. Whether the grounds relied upon for the appeal from the order would have been available upon an appeal from the

p. 822

judgment involves an examination of the record, and for that reason cannot be considered upon a motion to dismiss the appeal. The order refusing to vacate a judgment is in its very nature a special order made after judgment, from which section 939 (3) of the Code of Civil Procedure authorizes a direct appeal.

The motion is denied.