Schmidt v. Townsend
| Citation | 103 Cal.App.2d 185,229 P.2d 488 |
| Court | California Court of Appeals |
| Decision Date | 29 March 1951 |
| Parties | SCHMIDT et al. v. TOWNSEND. Civ. 14741. |
Callaghan, Giannini & Anello, San Jose, for appellants.
Richard W. Stevens, Chester E. Ross, Hollister, for respondent.
This is a motion to dismiss an appeal on the ground that the order appealed from is not appealable. The pertinent dates are as follows:
June 21, 1950--cause called for trial. The minutes of the court for that day show that the attorney for the plaintiffs * * *'
July 1, 1950--plaintiffs filed a notice of appeal 'from that certain order made and entered by the Court in this action on the 21st day of June, 1950, denying the plaintiffs the right to trial by jury in the above-entitled matter.'
July 29, 1950--findings of fact made and judgment entered.
December 7, 1950--defendant and respondent filed his notice of intention to move for a dismissal of the appeal.
January 15, 1951--plaintiffs and appellants filed opposition to the motion to dismiss.
No appeal was taken from the judgment of July 29, 1950, and the time to appeal therefrom has long since expired. Respondent urges that the order denying a jury trial is not separately appealable and must be reviewed, if at all, on an appeal from the judgment. This is clearly the law. The order denying a jury trial is not made appealable by section 963 of the Code of Civil Procedure. Such an interlocutory order is therefore not appealable, but is reviewable only upon appeal from the final judgment. In re Robinson's Estate, 106 Cal. 493, 39 P. 862; Stern v. Hillman, 115 Cal.App. 156, 300 P. 972; Mutual Bldg. & Loan Ass'n v. Corum, 220 Cal. 282, 30 P.2d 509; In re Fife, 110 Cal. 8, 42 P. 299. Since appellants have seen fit to appeal from the non-appealable order and have not appealed from the judgment, it is apparent that no appeal is pending and the purported appeal from the non-appealable order must be dismissed.
Appellants have filed opposition to the motion. They do not urge that the order denying their motion for a jury trial is appealable, but do claim that the motion to dismiss the appeal should be dismissed because counsel for appellants is inexperienced in appellate matters, did not mislead respondent, and intended to appeal from that portion of the judgment denying their motion for a jury trial. While notices of appeal must be liberally construed to permit, if possible, a hearing on the merits, and no technicality should prevent such a hearing, Holden v. California Emp. Stabilization Comm., 101...
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In re Lopez
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...Smith or Collins, supra, both of which cases were decided prior to Futlick. Futlick is based primarily upon Schmidt v. Townsend (1951), 103 Cal.App.2d 185, 229 P.2d 488, which is referred to in Collins, supra, 112 Cal.App.2d page 722, 247 P.2d 352, but not In Estate of Roberson (1952), 114 ......
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