SMITH v. BROWN DE MERT (1944)

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

These are the undisputed facts:

On August 19, 1943, the trial court dismissed with prejudice, under the provisions of Section 581 of the Code of Civil Procedure, an action instituted by plaintiff to enforce a forfeiture of real estate. Prior to the dismissal of the action on August 19, 1943, plaintiff's counsel moved for a stay or continuance of the action on the ground that plaintiff was in the United States Army. This motion was denied and the judgment became final.¹ On December 10, 1943. Plaintiff made a motion to set aside the previous order of August 19, 1943, dismissing the action, on the ground that the trial court should have granted the motion for a continuance theretofore made on August 19, 1943. This motion to set aside the previous order was denied.

Respondents rely upon this proposition:

Since the order of August 19, 1943, was an appealable order, the order of December 10, 1943, denying plaintiff's motion to set aside the previous order was nonappealable.

This proposition is tenable. It is the general rule that an order refusing to vacate an appealable order is nonappealable, if the grounds upon which the party seeks to have the order vacated existed before the entry of the original order and were available on an appeal from such order. Neighbours v. Neighbours, 62 Cal.App.2d 840, 841, 145 P.2d 688, and cases therein cited.

Applying the foregoing rule to the facts of the instant case, since the alleged error urged on the motion to set aside the order of August 19, 1943, was available on an appeal from such order, the order of December 10, 1943, denying plaintiff's motion to set aside the previous order was nonappealable. None of the exceptions to the general rule are applicable, and the purported appeal must be dismissed.

FOOTNOTES

1.  A purported appeal from the judgment was dismissed by this court on June 28, 1944, for the reason that such purported appeal was not taken within the statutory period.

McCOMB, Justice.

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