Descalso

This appeal is from an order somewhat in consistent in its terms, denying and dismissing a motion for a new trial. To deny a motion is to entertain and act upon it, and at the same time to end it, when, of course, it cannot be dismissed. A dismissal is a refusal to entertain it. The two forms were adopted because the decisions of this court have caused some doubt as to what is the proper remedy in case the moving party fails to prosecute his motion with reasonable diligence. In Quivey v. Gambert, 32 Cal. 305 , it was held that an order dismissing a motion for a new trial, or striking *894 out the statement, was not appealable, because though after final judgment in point of time, they did not follow it in legal sequence, or in the same line of procedure, and did not depend upon it. The court therefore recommended that the trial court let the motion proceed to the final hearing, and then deny it for failure to prosecute with reasonable diligence. In Calderwood v. Peyser, 42 Cal. 110 , this rule is criticised, and the rule declared to be that any special order made after final judgment is appealable, the only test being the point of time. But the court still held that it was error…