Barry

Plaintiff brought this action to recover the sum of $9,500 claimed to be due as commissions in connection with the sale of a ship. The complaint was filed on August 18, 1925, and defendants answered on December 9, 1925. Four years later and on December 7, 1929, pursuant to a motion made by the defendants for such purpose, the trial court dismissed the action upon the ground that the same had not been brought to trial within the statutory period of two. years after the answer had been filed, as required by section 583 of the Code of Civil Procedure, prior to its amendment in 1929 (Stats. 1929, p. 683), and from the judgment of dismissal entered thereon plaintiff took an appeal.

After taking the appeal plaintiff moved to vacate the judgment of dismissal. The motion was heard and denied; and plaintiff has appealed also from the order made in that behalf. It is a general rule, however, that an order refusing to vacate a final judgment is not appealable if the grounds upon which the party sought to have the same vacated existed before the entry of the judgment and were available on an appeal from the judgment, the main reason for the rule being that if such an appeal were allowed it…