Dean v. Midland Farms Co.

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. [1] 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 P. 334]. See, also, Diamond v. Superior Court, 189 Cal. 732, 739 [210 P. 36]; Furlow Pressed Brick Co. v. BalboaLand Water Co., 186 Cal. 754, 760 [200 P. 625]; Nason v.Shinjo, 72 Cal.App. 530 [137 P. 559].) *Page 215 [2] This cause 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.