Opinion
Department One
MOTION to dismiss an appeal from an order of the Superior Court of Alameda County denying a new trial. S. P. Hall, Judge.
COUNSEL:
W. F. Fitzgerald, and Fitzgerald & Abbott, for Appellant.
W. A. Dow, City and County Attorney, for Respondent.
OPINION
THE COURT
A motion is made herein to dismiss the appeal from the order denying a new trial. The question involved in the appeal is the sufficiency of the proceedings for changing the boundaries of the city of Oakland, and the present motion is made upon the ground that under the statute by virtue of which those proceedings were taken there is no provision for a new trial. The action herein is for the usurpation of a franchise, and is brought under the provisions of section 803 of the Code of Civil Procedure, and the proceedings for changing the boundaries of the city were only evidence in support of the action. Section 803 is found in chapter V of part II of the Code of Civil Procedure, and the sections under which new trials are authorized are in the same part of the code, and contain no limitations respecting the character of the action in which they are to be granted. Other questions of fact than those relating to proceedings for changing the boundaries of the city may have been involved, and errors of law may also have occurred at the trial. New trials have frequently been granted in actions under this section. (People v. Sutter Street Ry. Co ., 117 Cal. 604; People v. Rodgers , 118 Cal. 393.)
The motion is denied.