Spiegelman

Standing between us and the judgment appealed from is the shadow of a final order granting a new trial. We say the order is final because recently in a cross-appeal in this same action we dismissed an appeal from the order on the ground that an appeal therefrom would not lie. If the order is valid, the appeal from the judgment should be dismissed because the problems it presents are moot. (Kower v. Gluck, (1867) 33 Cal. 401, 407 , as interpreted in Pierce v. Birkholm, (1896) 110 Cal. 669, 673 [ 43 Pac. 205 ], and in Jackson v. Dolan, (1927) 202 Cal. 468, 471 [ 261 Pac. 706 ].) Our first task, therefore, should be to determine the validity of the order granting a new trial.

We are of the opinion that the order is nugatory because it was made without statutory authority. The proceeding in which the order appears was a hearing to determine title to property claimed by a third party after a levy under attachment. Since the amendments adopted in 1935 became effective, section 689 of our Code of Civil Procedure prescribes rather in detail the steps to be followed in such a proceeding. Omitting some provisions having to do with other matters, that portion of the section dealing with the…