Hyperlawhypertext legal database Larkin v. Larkin 76 Cal. 323

← Cases

Larkin v. Larkin

76 Cal. 323 Court Department Two. Decision date 1888-05-29 Docket No. 11333 English

Contents

Majority

p. 323
[No. 11333.
Department Two.
May 29, 1888.]
STEPHEN LARKIN, Respondent, v. JENNIE LARKIN, Appellant.

Headnote

Appeal-Order Refusing to Vacate Appealable Order—Order Refusing to Set Aside Order Denting New Trial. —An order refusing to vacate an order refusing a new trial and dismissing the motion therefor is not appealable, as an appeal lies from the last-named order.
Id.—Identification of Papers Used on Motion.—An order refusing a new trial and dismissing the motion therefor, which was heard upon affidavits and oral testimony, will not be reviewed on appeal when the transcript contains no statement on appeal, no bill of exceptions, and no papers identified as the papers used on the hearing of the motion.
Appeal from a judgment of the Superior Court of Alameda County, from an order refusing a new trial and dismissing the motion therefor, and from an order refusing to vacate such order.
The facts are stated in the opinion.
Charles F. Hanlon, and L. L. Cory, for Appellant.
Thomas H. Smith, and Mastich, Belcher & Masticlc, for Respondent.

This is an appeal from a final judgment in divorce proceedings, from an order refusing a new trial and dismissing the motion therefor, and from an order refusing to set aside and vacate the order above mentioned.

As the appellant confesses, there is no record here upon which an appeal from the judgment can be considered.

The order refusing a new trial and dismissing the motion therefor was itself appealable.

It has been often held by this court that it will not take jurisdiction of an appeal taken from an order refusing to set aside an order itself appealable. (Tripp v. Santa Rosa Street R. R. Co., 69 Cal. 632 , and cases cited.)

p. 324
So that it alone remains to be determined what course is to be taken as to the appeal from the order refusing a new trial and dismissing the motion therefor. The order appealed from shows that the motion was heard upon affidavits and oral testimony.

There being in the transcript no statement on appeal, no bill of exceptions, and no papers indentifiable as the papers used on the hearing of the motion to dismiss, the validity and regularity of the order of dismissal is not reviewable on appeal. “The presumption is, that the order was properly made, and in the absence of a bill of exceptions or statement on appeal making the motion and order part of the record of the case, that presumption is conclusive.” (Strathern v. Dakin, 63 Cal. 479 ; citing Nash v. Harris, 57 Cal. 242 .)

We therefore advise that the appeal from the judgment and order last made refusing to set aside the order denying a new trial and dismissing the motion therefor be dismissed, and that the order last mentioned be affirmed.

Belcher, C. C., concurred.

For the reasons given in the foregoing opinion, the appeal from the judgment and order last made refusing to set aside the order denying a new trial and dismissing the motion therefor is dismissed, and order denying a new trial is affirmed.

Cases cited