ZSCHOKKE v. LUMLEY (1937)

From a judgment in favor of respondent after trial before the court without a jury in an action to recover damages for personal injuries, appellant appeals.

The essential facts are these:

Respondent filed an action to recover damages for personal injuries which he suffered as a result of being struck by an automobile owned by appellant and operated at the time of the accident with his consent by a minor Dorothy Dale. The action was tried before a jury which returned a verdict in favor of respondent and against defendant Dale in the sum of $25,000 and against appellant in the sum of $3,000. Subsequently respondent's motion for a new trial as to appellant was granted. The trial court in its order granting a new trial limited the retrial to the sole issue of damages. No appeal was taken from this order and it became final.

Thereafter, over objection of appellant, a new trial on the issue of damages only was heard before the court sitting without a jury, and judgment rendered in favor of respondent and against appellant in the sum of $5,000.

The sole question presented for determination is this:

May alleged errors in an order of the trial court vacating a judgment and granting a new trial from which no appeal has been taken, and which is final, be reviewed upon appeal from a second judgment rendered upon the retrial of the action?

The answer to this question must be in the negative. The law is settled that an order granting a motion for a new trial is not reviewable on an appeal from a second judgment rendered upon a retrial of the case. Brown v. Tolles, 7 Cal. 398, 399, 400; Furlow P. B. Co. v. Balboa L. & W. Co., 186 Cal. 754, 761, 200 P. 625; Schomaker v. Roemer, 54 Cal.App. 258, 259, 201 P. 803; 2 Cal.Jur. 175.

Applying this rule to the facts of the instant case, the order granting a new trial having become final, this court will not review alleged errors in the granting thereof on this appeal from the judgment entered after the second trial.

For the foregoing reasons the judgment is affirmed.

McCOMB, Justice.

We concur: CRAIL, P. J.; WOOD, J.