Morris

This is an action to recover damages for an alleged malicious prosecution of plaintiff by defendant, who, in an affidavit sworn to by him and filed in the justice’s court of San Diego township, charged that plaintiff, in violation of section 476a of the Penal Code, willfully and with the intent to defraud defendant, drew and delivered to the latter his check on a San Diego bank knowing that he had not sufficient funds in or credit with the bank to meet the cheek upon its presentation. After his preliminary examination before the justice plaintiff was discharged and the criminal proceeding against him was dismissed upon the ground that there was no sufficient cause to believe him guilty. Thereafter plaintiff brought this action for alleged malicious prosecution. The case was tried by the court without a jury. The trial court found that defendant instituted the criminal proceeding against plaintiff without probable cause and with malice, and gave judgment for plaintiff accordingly. Defendant appeals from the judgment and likewise from an order denying him a new trial. The order denying a new trial is not appealable and for that reason the attempted appeal therefrom must be…