Conlin

Respondent moved to dismiss an appeal from an order of the superior court denying a new trial, claiming that such an order is not appealable, under section 963 of the Code of Civil Procedure, which lists the cases in which an appeal may be taken. Prior to 1915, by the terms of that section, an order refusing, as well as an order granting, a new trial was appealable. The legislature in that year struck out the words “or refusing” before “a new trial” (Stats. 1915, p. 209), but at the same session recast section 956 of the Code of Civil Procedure in the form now in effect whereby it is provided that upon an appeal from a judgment “the court may . . . review any order on motion for a new trial”. Section 953e of the Code of Civil Procedure was enacted in 1931. It gives the trial court power to vacate a judgment, order or decree from which an appeal has been or is to be taken and to order a new trial, when by reason of the death or other disability of the trial reporter it is impossible to have the phonographic report of the proceedings transcribed. In the instant case, after plaintiff had secured a judgment in a case tried by a jury, the trial court denied a motion for a new trial,…