Dean v. Midland Farms Co. , 96 Cal. App. 214 ( 1929 )

SPENCE, J., pro tem.

This is an action to declare a trust and for an accounting. The cause was tried by the court without a jury and judgment was entered in favor of the plaintiff and against defendants. Upon motion by defendants, the court made its order granting a new trial, from which order plaintiff appeals.

Since the amendment in 1915 of section 963 of the Code of Civil Procedure, an order granting a new trial is no longer an appealable order except “in an action or proceeding tried by a jury where such trial by jury is a matter of right.” (McGoldrick v. Visalia Midway Oil Co., 58 Cal. App. 280 [208 Pac. 334]. See, also, Diamond v. Superior Court, 189 Cal. 732, 739 [210 Pac. 36]; Furlow Pressed Brick Co. v. Balboa Land & Water Co., 186 Cal. 754, 760 [200 Pac. 625]; Nason v. Shinjo, 72 Cal. App. 530 [137 Pac. 559].)

This canse does not fall within the class of cases in which an appeal from an order granting a new trial is permitted.

The appeal is dismissed.

Tyler, P. J., and Knight, J., concurred.