Synder v. Dorosh

P. N. SNYDER, Appellant, v. PAUL J. DOROSH, Respondent.

COUNSEL

Albert A. Albeck for Appellant.

Frederick H. Whitfield for Respondent.

OPINION

McComb, J.

From an order denying his motion to set aside an order of the superior court, vacating a judgment pursuant to the provisions of section 473 of the Code of Civil Procedure, plaintiff appeals.

The essential facts are:

January 23, 1936, judgment was entered in favor of plaintiff. Thereafter on July 22, 1936, defendant filed an application under section 473 of the Code of Civil Procedure to vacate the judgment theretofore entered, which motion was granted August 4, 1936. April 20, 1937, plaintiff made a motion to set aside the order of August 4, 1936. This motion was denied.

[1] This is the sole question necessary for us to determine:

May alleged errors in an order of the trial court vacating a judgment pursuant to the provisions of section 473 of the Code of Civil Procedure, from which no appeal has been taken and which is final, be reviewed upon appeal from an order denying a motion to vacate the prior order?

This question must be answered in the negative. It is the [22 Cal. App. 2d 592] law that an order not void on its face granting a motion, from which no appeal has been taken and which is final, is not reviewable on appeal from a subsequent order denying a motion to vacate the previous order. (Zschokke v. Lumley, ante, p. 224 [70 PaCal.2d 495].)

In the instant case the order of August 4, 1936, was not void on its face and had become final several months prior to the order of April 20, 1937, herein appealed from. Therefore, applying the rule of law set forth above, this court will not review alleged errors in the original order.

The order appealed from is affirmed.

Crail, P. J., and Wood, J., concurred.