Kerrigan

Action to recover damages for breach of contract to render personal services. Defendant denied that he entered into the alleged contract; also denied the alleged breach of contract, and denied that plaintiff was damaged thereby. There were further issues, including those presented by cross-complaint and the answer thereto. After entry of judgment against defendant for a stated amount, the defendant gave notice of intention to move the court “to vacate and set aside the decision and judgment” entered, and to grant a new trial of the action. That motion having been presented in due course, it was ordered that “said motion for a new trial herein is granted and a new trial is ordered as to issue or issues presenting the question of thé amount of damages suffered by the plaintiff; as to all other issues the motion for a new trial is denied.” Thereafter the defendant gave notice of appeal “from the whole of the said judgment, except the part and portion thereof vacated by the order of the said court in granting in part defendant’s motion for a new trial, to wit,” etc.

[1] Although the appeal has 'been presented by briefs arguing the case on its merits, the court is forced to take…