Summary
In Sharp v. Miller, 66 Cal. 98, [4 P. 1065], upon a similar question, the court said: "The reversal of the judgment and order denying the motion for a new trial when the cause was here before, placed the parties in the lower court in the same position as if the case had never been tried, with the exception that the opinion of this court must be followed so far as applicable in the new trial."
Summary of this case from Estate of PuseyOpinion
Department Two
Appeal from an order of the Superior Court of the city and county of San Francisco, refusing to strike from the files an amended complaint.
COUNSEL:
P. B. Ladd, and Frederick S. Stratton, for Appellant.
Wm. H. Sharp, for Respondent.
OPINION
THE COURT The order appealed from in this case is not appealable. The appellant contends that it is a special order made after final judgment. The judgment formerly rendered was reversed, and there was no judgment in the cause, when the order appealed from was made. The reversal of the judgment and order denying the motion for a new trial when the cause was here before (see 54 Cal. 329), placed the parties in the lower court in the same position as if the case had never been tried, with the exception that the opinion of this court must be followed so far as applicable in the new trial. (Stearns v. Aguirre , 7 Cal. 447.)
Appeal dismissed.