Opinion
Department Two
Appeal from an order granting a new trial, in the Third District Court, County of Alameda. McKee, J.
COUNSEL
It appears from the transcript that there was nothing before the Court upon which to base the motion. The Court had no power to grant the motion without some showing. Here there was no statement, no affidavits, no bill of exceptions.
C. A. Tuttle, and J. P. Dameron in proper person, for Appellants.
N. Hamilton, and Marcus P. Wiggin, for Respondent.
This appeal cannot be heard, inasmuch as no statement is contained in the record.
OPINION The Court:
This in an action of ejectment. The defendants had judgment, and a motion for a new trial was made on the minutes of the Court, which was granted.
The correctness of the ruling cannot be reviewed on this appeal. Section 661 of the Code of Civil Procedure provides that, when the motion for a new trial is made on the minutes of the Court, the judgment roll, and a statement to be subsequently prepared, with a copy of the order, shall constitute the record on appeal. There is no such statement in this case.
Order appealed from affirmed.