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District Court of Appeal, Second District, Division 2, California.


Civ. 14362.

Decided: February 08, 1944

Buel R. Wood, of Los Angeles, for appellant. William Ellis Lady, of Los Angeles, for respondent.

This is a motion to dismiss the appeal from an order of the trial court denying appellant's motion to set aside a previous appealable order of the court.

These are the undisputed facts:

On July 23, 1943, the superior court made an order directing the Marshal of the Municipal Court of the City of Los Angeles to apply any moneys in his possession in satisfaction of a judgment upon which a writ of execution had theretofore been issued. This was an appealable order. (Sec. 963, Code of Civ. Proc.) On August 12, 1943, the trial court denied appellant's motion to set aside its order of July 23, 1943.

Respondent relies upon this proposition:

That since the order of July 23, 1943, was an appealable order, the order of August 12, 1943, denying appellant's motion to set aside the previous order was nonappealable.

This proposition is tenable. It is the general rulea1 that an order refusing to vacate an appealable order is nonappealable if the grounds upon which the party sought to have the order vacated existed before the entry of the original order and were available on an appeal from such order. (Home Owners', etc., Corp. v. Engelbertson, 54 Cal.App.2d 46, 48, 128 P.2d 424; Meis v. Collins, 1 Cal.App.2d 433, 435, 36 P.2d 662; Taft v. Security–First Nat. Bank, 139 Cal.App. 228, 232, 33 P.2d 683. See also De la Montanya v. De la Montanya, 112 Cal. 101, 118, 44 P. 345, 32 L.R.A. 82, 53 Am.St.Rep., 165.)

Applying the foregoing rule to the facts of the instant case, since the alleged errors were available upon an appeal from the appealable order of July 23, 1943, the order of August 12, 1943, denying appellant's motion to set aside the previous order was nonappealable, as none of the exceptions to the general rule are applicable, and the purported appeal therefrom must be dismissed.

It is so ordered.


1.  There are certain recognized exceptions to the general rule, to wit, an appeal lies from an order:(1) Refusing to set aside a final judgment if appellant has no other method of presenting the case to the appellate court. Helbush v. Superior Court, 99 Cal.App. 501, 505, 278 P. 1062.(2) Setting aside a judgment and rendering a substituted judgment when the statute authorizes such an order. California Delta Farms v. Chinese American Farms, 201 Cal. 201, 202, 255 P. 1097.(3) Refusing to set aside a previous order when the appellant was not a party to the original proceeding and could not appeal therefrom. Title Insurance & Trust Company v. California, etc., Co., 159 Cal. 484, 488, 114 P. 838.

McCOMB, Justice.

MOORE, P. J., and W. J. WOOD, J., concur.

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