Freeman v. Brown , 4 Cal. App. 108 ( 1906 )

I concur in the order denying the motion to dismiss the appeal in this case, and also in the opinion that the decision in Murphy v. Stelling, 138 Cal. 642, [72 P. 176], is directly in point. But I regard that case as merely an application of the more general principle that all orders made in proceedings for a new trial which have the effect of finally disposing of the motion are special orders made after final judgment, and therefore appealable. (Hayne on New Trial, sec. 146; Calderwood v. Peyser, 42 Cal. 115, and cases cited; McDonald v. McConkey, 57 Cal. 326; Clark v.Crane, 57 Cal. 633; Griess v. State Investment Co., 93 Cal. 411, [28 P. 1041]; Stonesifer v. Kilburn, 94 Cal. 42, [29 P. 332]; Sutton v. Symons, 97 Cal. 476, [32 P. 588]; same case, 100 Cal. 576, [35 P. 158]; Symons v.Bunnell, 101 Cal. 223, [35 P. 770]; Kaltschmidt v. Weber,136 Cal. 675, [69 P. 497]; Murphy v. Stelling, 138 Cal. 641, [72 P. 176].) This, however, as said in the case last cited, will not apply to a mere refusal of the court to settle the statement in cases where the moving party is by law entitled to have it settled. In such a case there is no order, and, therefore, the only remedy is mandamus.