Ratliff v. Ratliff , 100 Cal. App. 556 ( 1929 )

Respondent moves the court to dismiss the appeal in the above-entitled cause for the reasons: First, that the judgment appealed from is not an appealable order within the meaning of section 963 of the Code of Civil Procedure; second, that the order appealed from is not subject to review, and, third, that the appellant in his opening brief has failed to point out any error in any ruling of the trial court or in any order appealed from.

[1] In In re Yoder, 199 Cal. 699 [251 P. 205], it is held that an order denying an application to set aside an order of the Superior Court on the ground of fraud is an appealable order, as the same is a special order made after final judgment, within the meaning of subdivision 2 of section 963 of the Code of Civil Procedure, and it is held there in effect that [2] although the general rule is that an appeal does not lie from an order denying a motion to vacate a judgment where the motion merely called upon the court to repeal or overrule the former ruling on the same facts, there are certain well defined exceptions to said rule, and such an order is appealable where the circumstances are such that an appeal from the first order would be vain for lack of a record showing the rights of the aggrieved party.

Appellant in this case had made motion for relief under section 473 of the Code of Civil Procedure to set aside a judgment of default entered on the cross-complaint.

[3] The third objection as to the matters contained in the opening brief is one that cannot be raised on a motion to dismiss an appeal.

The motion to dismiss the appeal is therefore denied.

Conrey, P.J., and Houser, J., concurred.