69 Cal. 71, 9700, Kimple v. Conway

Docket Nº9700
Citation69 Cal. 71, 10 P. 189
Opinion JudgeTHORNTON, Judge
Party NameKATE KIMPLE, Appellant, v. MARGARET CONWAY et al., Respondents
AttorneyD. L. Smoot, and Aug. M. Heslep, for Appellant. W. R. Daingerfield, for Respondents.
Judge PanelJUDGES: Thornton, J. McKee, J., and Sharpstein, J., concurred.
Case DateMarch 09, 1886
CourtSupreme Court of California

Page 71

69 Cal. 71

10 P. 189

KATE KIMPLE, Appellant,

v.

MARGARET CONWAY et al., Respondents

No. 9700

Supreme Court of California

March 9, 1886

Department Two

Appeal from an order of the Superior Court of the city and county of San Francisco granting a nonsuit, and from an order dissolving a preliminary injunction, and from an order refusing a new trial.

Motion to dismiss appeal.

COUNSEL:

D. L. Smoot, and Aug. M. Heslep, for Appellant.

W. R. Daingerfield, for Respondents.

JUDGES: Thornton, J. McKee, J., and Sharpstein, J., concurred.

OPINION

THORNTON, Judge

[10 P. 190] Motion to dismiss appeals taken by the plaintiff. The notice of appeal is as follows: --

" You will please take notice that the plaintiff in the above-entitled action hereby appeals to the Supreme Court of the state of California, from the judgment or order of nonsuit in the above-entitled cause, also order dissolving preliminary injunction in said cause therein entered in the said Superior Court on the eighth day of

Page 72

February, 1884, in favor of the defendants in said action and against said plaintiff, and from the whole thereof.

" Also overruling and denying plaintiff's motion to set aside said judgment or order of nonsuit, and dissolving plaintiff's preliminary injunction, and for granting a rehearing therein, entered in said Superior Court on the 21st of May, A. D. 1884, in favor of said defendants in said action and against said plaintiff."

1. There is no appeal allowed by law from an order of nonsuit. Nor does the law allow an appeal from a judgment of nonsuit. If it should be urged that the judgment of nonsuit is the final judgment from which an appeal is allowed, the plain reply is that the transcript does not show that a final judgment has ever been entered. No appeal can be taken from a final judgment until it has been entered. (McLaughlin v. Doherty , 54 Cal. 519; Thomas v. Anderson , 55 Cal. 43.)

2. The transcript contains no order dissolving an injunction. On appeal from that order the order must be furnished in the transcript. (Code Civ. Proc., sec. 951.)

3. The third appeal mentioned in the notice of appeal we are of opinion is an appeal from an order denying a new trial. The notice of appeal states it as an appeal from overruling and denying plaintiff's motion for granting a...

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22 practice notes
  • 3 Cal.Rptr. 446, Civ. 24165, Burstein v. Zelman
    • United States
    • California California Court of Appeals
    • 16 March 1960
    ...Supple v. Luckenbach, 45 Cal.App.2d 734, 735, 114 P.2d 734; Curran v. Giometti, 20 Cal.App. 2d 405, 406, 66 P.2d 1260; Kimple v. Conway, 69 Cal. 71, 72, 10 P. 189; Valley Lumber Co. v. Struck, 146 Cal. 266, 271-272, 80 P. 405; O'Connell v. O'Connell, 201 Cal. 48, 52-53, 255 P. 514; Lewis v.......
  • 61 P. 1031 (Idaho 1900), Brossard v. Morgan
    • United States
    • Idaho Supreme Court of Idaho
    • 23 June 1900
    ...the appeal is ineffectual. (McLaughlin v. Dougherty, 54 Cal. 519; Meysan v. Chabrick, 33 Kan. 640, 7 P. 213; Kimple v. Conway, 60 Cal. 71, 10 P. 189.) In view of the fact that there is no statement here, no bill of exceptions, no evidence before the court, and that the appeal was not taken ......
  • 7 N.E. 104 (Ill. 1886), Farson v. Gorham
    • United States
    • Illinois Supreme Court of Illinois
    • 15 May 1886
    ...v. Lorenz, (Minn.) 25 N.W. 712. See Craver v. Christian, (Minn.) 26 N.W. 8. An order of nonsuit is not appealable. Kimple v. Conway, (Cal.) 10 P. 189....
  • 24 N.Y.2d 609, Tobin v. Grossman
    • United States
    • New York New York Court of Appeals
    • 24 April 1969
    ...facts before it and leave, as that court said, to a case-by-case development any extensions to be evolved (Dillon v. Legg, Supra, p. 740, 69 Cal. 72, 441 P.2d 912). In this case, the additional undisputed and varying facts of the pretrial examination are before the court in the record. It i......
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22 cases
  • 3 Cal.Rptr. 446, Civ. 24165, Burstein v. Zelman
    • United States
    • California California Court of Appeals
    • 16 March 1960
    ...Supple v. Luckenbach, 45 Cal.App.2d 734, 735, 114 P.2d 734; Curran v. Giometti, 20 Cal.App. 2d 405, 406, 66 P.2d 1260; Kimple v. Conway, 69 Cal. 71, 72, 10 P. 189; Valley Lumber Co. v. Struck, 146 Cal. 266, 271-272, 80 P. 405; O'Connell v. O'Connell, 201 Cal. 48, 52-53, 255 P. 514; Lewis v.......
  • 61 P. 1031 (Idaho 1900), Brossard v. Morgan
    • United States
    • Idaho Supreme Court of Idaho
    • 23 June 1900
    ...the appeal is ineffectual. (McLaughlin v. Dougherty, 54 Cal. 519; Meysan v. Chabrick, 33 Kan. 640, 7 P. 213; Kimple v. Conway, 60 Cal. 71, 10 P. 189.) In view of the fact that there is no statement here, no bill of exceptions, no evidence before the court, and that the appeal was not taken ......
  • 7 N.E. 104 (Ill. 1886), Farson v. Gorham
    • United States
    • Illinois Supreme Court of Illinois
    • 15 May 1886
    ...v. Lorenz, (Minn.) 25 N.W. 712. See Craver v. Christian, (Minn.) 26 N.W. 8. An order of nonsuit is not appealable. Kimple v. Conway, (Cal.) 10 P. 189....
  • 24 N.Y.2d 609, Tobin v. Grossman
    • United States
    • New York New York Court of Appeals
    • 24 April 1969
    ...facts before it and leave, as that court said, to a case-by-case development any extensions to be evolved (Dillon v. Legg, Supra, p. 740, 69 Cal. 72, 441 P.2d 912). In this case, the additional undisputed and varying facts of the pretrial examination are before the court in the record. It i......
  • Request a trial to view additional results