Opinion
Rehearing Denied Nov. 20, 1930
Hearing Granted by Supreme Court Dec. 18, 1930
Appeal from Superior Court, Los Angeles County; Arthur Keetch, Judge.
Action by Alice D. Moffitt against the Ford Motor Company and others. From an order vacating a previous order of nonsuit and directing trial of the issues, defendants appeal. On motion to dismiss appeal.
Motion granted
COUNSEL
Lucius K. Chase, Chase, Barnes & Chase, George L. Greer, Hardy, Elliott & Aberle, Joe Crider, Jr., Harry D. Parker, Dave F. Smith, Guy B. Graham, George H. Moore, and Gerald O’C. Egan, all of Los Angeles, for appellants.
Benjamin M. Stansbury and Mott, Vallee & Grant, all of Los Angeles, for respondent.
OPINION
CRAIG, J.
A jury having been impaneled and sworn to try the issues in this case, counsel for the plaintiff made an opening statement, upon which statement the defendants interposed a motion for a nonsuit, which was granted. Thereafter the trial court vacated its order for nonsuit, and ordered a trial, on motion of the plaintiff. From this latter order the defendants appealed, and the plaintiff and respondent moves that the appeal be dismissed upon the ground that it is not authorized by existing statutes as amended.
The first order was made under the provisions of section 581 of the Code of Civil Procedure, authorizing a nonsuit when the plaintiff fails to prove a sufficient case for the jury. Such action has been approved when in the sound judicial discretion of the court it seemed clear that the statement of proposed proof would not constitute a cause of action. Bias v. Reed, 169 Cal. 33, 145 P. 516.
Section 963, subd. 2, of the Code of Civil Procedure, permits of an appeal from an order "granting a new trial *** in an action or proceeding tried by a jury where such trial by jury is a matter of right." Reduced to a concise construction of this provision as advanced by appellants, it overlooks an essential element incorporated in said section by the Legislature, and asserts the right of appeal from an order granting a new trial in any action or proceeding, whenever trial by jury is a matter of right. We do not accede to this view, firstly, for the reason that the conditions presented do not unquestionably fall within the designation of a "trial or proceeding" contemplated by the statutes, and, secondly, that it adds by construction a right which was eliminated by amendment in 1915. No evidence was offered, nor was any question officially considered by the jury or determined, under instructions of the court, or otherwise. The jury were simply called, examined as to their qualifications, sworn, and discharged. The judge alone considered and acted upon the opening statement of counsel, as a matter of law. Appellants refrain from conceding the inevitable conclusion, upon their suggested interpretation, that they had been afforded a trial by jury when the nonsuit was granted, and that such is not the fact must be admitted. John C. King Co. v. L. & N.R. Co., 131 Ky. 46, 114 S.W. 308; Vickers v. Atlanta & W.P.R. Co., 64 Ga. 307; Perlman v. Brooklyn, H.R. Co., 78 Misc. 168, 137 N.Y.S. 917. But they do insist that they may appeal from the order vacating the judgment of nonsuit and ordering a trial of the issues, because they were entitled to a jury as a matter of right, although such action as was taken was performed by the court. As we have indicated, this must be based upon the assumption that one may appeal from an order granting a new trial in all save expressly excepted cases, whether tried by a jury or by the court. That such was not the legislative intent is strongly indicated by decided cases. In re Estate of Baird, 195 Cal. 59, 231 P. 744, 748; Estate of Waters, 181 Cal. 584, 185 P. 951; McGoldrick v. Visalia Midway Oil Co., 58 Cal.App. 280, 208 P. 334. 335.
In In re Estate of Baird, supra, which was reversed after trial by a jury following two previous reversals, the Supreme Court directed that special findings and verdicts be set aside and that an order denying a petition for partial distribution be entered. The superior court having compiled with the terms of that decision, the petitioner moved for a new trial, which was granted, whereupon the respondents appealed. A motion to dismiss the appeal was denied upon the ground that "this is an appeal ‘from all order granting a new trial *** in an action or proceeding tried by a jury’— within the meaning of section 963, Code of Civil Procedure." All parties to the instant proceeding rely on the language of that authority, but it plainly held that, notwithstanding the entry of judgment under directions of the appellate tribunal under the circumstances related, it was clear "that this appeal rests as much upon the verdicts of the jury as does petitioner’s motion for a new trial. The direction to the trial court in reversing the judgment to set aside the verdicts and findings and enter judgment for respondents, the compliance with said directions by the trial court, and the subsequent order granting a new trial, all have a direct connection with and are related to the verdicts of the jury, for, although the successive steps taken after the rendition of the verdicts represent in a sense independent proceedings, nevertheless each of them depends upon and rests on such verdicts." Section 963 of the Code of Civil Procedure is clearly there construed as meaning "that there cannot be an appeal from an order granting a new trial unless there has been a trial by jury as distinguished from a trial by the court without a jury or in an equity proceeding." (Italics supplied.) Upon the authority of Estate of Waters, supra: "Section 963, Code of Civil Procedure, before it was amended in 1915, provided that an appeal might be taken from ‘an order granting or refusing a new trial.’ By the amendment of the year mentioned, the passage of the amendment long antedating the order now appealed from, this language was changed so as to permit an appeal only from ‘an order granting a new trial in an action or proceeding tried by a jury where such trial by jury is a matter of right.’ The Supreme Court, in reciting the history of this amendment and of others affecting appeals, has said: ‘Separate appeals from orders granting new trials can be had only in those cases where a jury trial has been had as a matter of right.’ " McGoldrick v. Visalia Midway Oil Co., supra. And again it was observed in Furlow Pressed Brick Co. v. Balboa L. & W. Co., 186 Cal. 754, 200 P. 625, 628, that said section "does not provide for an appeal from an order granting a new trial after trial by the court sitting without a jury," since "it was evidently thought by the Legislature to be more expeditious and economical to do away with the appeal from the order granting a new trial where there had been no trial jury and thus to allow the parties to try the case de novo than to permit such appeals."
Hence we are impelled to hold that there was no jury trial, and that, in the absence of such a trial, the order was not appealable, even though the case may have been of such nature as to have warranted a trial by jury. This being so, the conclusion is inevitable that the order in controversy was not appealable, and it is immaterial whether or not the proceeding constituted a trial within the contemplation of section 963 of the Code of Civil Procedure. If it did not, of course the order would not be appealable, and, if it did, the trial was before the court, and an order granting a new trial under such circumstances cannot be appealed.
The motion to dismiss is granted.
We concur: WORKS, P.J.; IRA F. THOMPSON, J.