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District Court of Appeal, Second District, Division 1, California.

Barnette MAYO, Plaintiff and Appellant, v. Joseph BEBER, M.D., Defendant and Respondent.

Civ. 24019.

Decided: September 10, 1959

Toxey H. Smith and Joan H. Martin, Los Angeles, for appellant. DeForrest Home, Los Angeles, for respondent.

This is a motion to dismiss an appeal taken by the plaintiff and appellant Barnette Mayo, from an order denying her motion purportedly made under section 473 of the Code of Civil Procedure, to set aside and vacate a judgment in favor of the defendant. The respondent moves to dismiss the appeal upon the grounds that the motion to vacate the judgment was made upon the same grounds as the motion for new trial, to wit: the disqualification of the trial judge under section 170, subd. 4 of the Code of Civil Procedure and that the question of the disqualification of the trial judge is subject to review on an appeal from the judgment which is now pending in Division Three of this court and that therefore the order here appealed from is not an appealable one.

The record fully supports the respondent's contention and upon the authority of Litvinuk v. Litvinuk, 27 Cal.2d 38, 162 p.2d 8, the motion to dismiss is granted.

NOURSE, Justice pro tem.

FOURT, Acting P. J., and LILLIE, J., concur.

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