Opinion
Department Two
Hearing In Bank Denied.
Appeal from an order of the Superior Court of Tuolumne County denying a motion for new trial, and from an order striking appellant's statement on motion for a new trial from the files, and from an order refusing to vacate such order.
COUNSEL:
Moses G. Cobb, and J. B. Curtain, for Appellants.
F. D. Nicol, for Respondent.
JUDGES: De Haven, J. McFarland, J., and Fitzgerald, J., concurred.
OPINION
DE HAVEN, Judge
The order of September 16, 1891, striking the appellant's statement on motion for a new trial from the files is a special order made after judgment, and the appeal therefrom not having been taken within sixty days from its date must be dismissed. (Sutton v. Symons , 97 Cal. 475.) The order referred to being itself an appealable order (Calderwood v. Peyser , 42 Cal. 113; Clark v. Crane , 57 Cal. 633) no appeal lies from the order refusing to vacate it, and the appeal from this latter order must also be dismissed.
In the absence of the statement the motion for a new trial was properly denied. (Sutton v. Symons , 100 Cal. 576.)
Order denying the motion for a new trial affirmed. The appeals from the order of September 16, 1891, striking the statement from the files, and from the order refusing to vacate the same are dismissed.