Opinion
Rehearing Granted July 10, 1931
Appeal from Superior Court, Los Angeles County; Wm. D. Dehy, Judge.
On application for rehearing.
Application granted, and former judgment vacated. Plaintiff’s appeal from order denying plaintiff’s motion to vacate judgment dismissed, and judgment below affirmed.
For former opinion, see 299 P. 768.
COUNSEL
Willebrandt & Horowitz and Girard F. Baker, all of Los Angeles, for plaintiff.
Tanner, Odell & Taft, of Los Angeles, for defendants.
OPINION
PER CURIAM.
The petition of defendants praying that the judgment of this court on these appeals, 299 P. 768, be vacated is granted, for the reason hereinafter stated. It has now been brought to our attention that the appeal of the plaintiff, from the order of the superior court denying plaintiff’s motion to vacate the judgment therein, is an attempted appeal from a nonappealable order. Code Civ.Proc., § 663a; Modoc Co-Op. Ass’n v. Porter, 11 Cal.App. 270, at pages 274, 275, 104 P. 710; Pitino-Capasso Fruit Co. v. Hillside Packing Co., 90 Cal.App. 191, 265 P. 859.
The dismissal of the plaintiff’s appeal takes away the foundation from the order which we made directing a modification of the judgment. For the reasons stated in the original opinion herein, we are satisfied that the plaintiff is entitled to recover on the note. But such recovery cannot be for a larger amount than was named in the judgment of the superior court, since the plaintiff did not appeal from the judgment.
The appeal by the plaintiff from said order is dismissed, and the judgment is affirmed.