Westervelt v. McCullough , 64 Cal. App. 362 ( 1923 )

Respondent moves to dismiss the appeal, which was taken from an order denying a motion made by defendant in the trial court under section 663 of the Code of Civil Procedure, namely, a motion in that court to set aside its judgment, amend its conclusions of law, and enter another and different judgment. No appeal has been taken from the judgment. Respondent claims that an order denying a motion to set aside the judgment and to enter another and different judgment is not an appealable order. Hence her motion to dismiss this appeal.

[1] An order denying a motion made under section 663 is unquestionably a special order made after final judgment, and as such is appealable under section 963 — unless there be some good reason for holding otherwise. Because in section 663a the legislature expressly provided that an order granting such a motion may be reviewed on appeal in the same manner as a special order made after final judgment, respondent argues that, under the familiar rule of construction, expressio uniusest exclusio alterius, it should be held that the lawmakers did not intend that there should be a right of appeal from an orderdenying the motion. To support this view respondent cites ModocCo-operative Assn. v. Porter, 11 Cal.App. 270 [104 P. 710]. It is true that certain dicta may be found in the opinion in that case which seem to give color to respondent's contention; but since that case was decided our supreme court has stated unequivocally that an order denying a motion made under section663 is appealable under section 963, as a special order made after final judgment. (Bond v. United Railroads, 159 Cal. 270 [Ann. Cas. 1912C, 50, 48 L. R. A. (N. S.) 687, 113 P. 366];Condon v. Donohue, 160 Cal. 749 [118 P. 113].) The rule thus announced is binding here.

The motion to dismiss the appeal is denied.

Works, J., and Craig, J., concurred.

A petition for a rehearing of this cause was dismissed by the district court of appeal on December 4, 1923.