Gillis

This motion to dismiss an appeal by defendants from an order denying their motion to vacate and set aside an order granting a motion for a new trial (made after entry of a judgment of nonsuit in favor of the defendants) is made upon the ground that “the appeal attempted to be taken is from an order which is not appeal-able”.

When this motion to dismiss appeal was first made we denied it ( 117 Cal. App. 247 [ 4 Pac. (2d) 199 ]) on the supposed authority of Moffitt v. Ford Motor Co., 212 Cal. 73 [ 297 Pac. 553 ]. We granted a rehearing because we were convinced of error in our application of that decision to the facts of this case.

In the Moffitt case it was held that there was a right of appeal from an order granting a new trial, when it was shown by the record that at the trial a jury had been impaneled and sworn, although the court granted the nonsuit following plaintiff’s opening statement to the jury and without receiving any evidence. But in the present case it appears that the trial, in which the nonsuit was granted, was before the court without a jury. There is no right of appeal from an order granting a new trial, other than “in an action or proceeding tried by jury where…