M. P. McCOURTNEY and J. H. McCOURTNEY v. H. W. FORTUNE, J. W. COLEMAN, and EDWARD BROWN, 42 Cal. 387

By the Court, Wallace, J.: Findings were filed and judgment for the defendant rendered (though not recorded or entered in form by the Clerk) on the 17th day of December, 1869. On the 29th day of December, 1869, upon motion of plaintiff, this judgment was vacated and set aside, and judgment was rendered for the plaintiff (but not recorded or entered in form by the Clerk).

On the 9th day of July, 1870, a motion made by the defendant to set aside the judgment rendered on the twenty-ninth of December, coming on to-be heard, was denied, and on July 12th, 1870, under the direction of the Court then given, judgment in favor of the plaintiff was formally recorded and entered against the defendant; and on March 27th, 1871, this appeal was taken from that judgment.

This judgment, as entered, was in pursuance of the order of December 29th, 1869; it recites that “ on motion of plaintiff’s attorney, made in open Court, which motion was based upon the findings of the Court, now on file herein, and upon the order of this Court duly made and entered on the 29th day of December, 1869, it is now ordered, adjudged,” etc.

It was therefore but the entry in form of the judgment rendered on the 29th day of December, 1869, and was in effect only a special direction to the Clerk to record in form the judgment which by the effect and operation of the order of December twenty-ninth he should have theretofore recorded in form. The time limited for an appeal from the judgment, thus commenced to run from the 29th day of December, 1869, when the judgment was rendered. The appeal taken March 27th, 1871, was, therefore, too late, and the respondent’s motion to dismiss it must, for that reason, be sustained.

But even if an appeal had been taken from the judgment within one year from the rendition (i. e., the order of December 29th, 1869), the supposed error of the order of that date could not have been reviewed upon such an appeal, for that order was one entered in the cause after the rendition of the judgment of December 17th, 1869, which it purported to set aside, and was itself, as being a Special order made after final judgment, the subject of a distinct appeal (Practice Act, Sec. 347), to be taken in sixty days after the making, of the order.

Upon an appeal from a final judgment an order made in the cause which is itself, by statute, made the subject of a distinct appeal, cannot be reviewed. The appeal must be dismissed; and it is so ordered. Mr. Justice Temple did not participate in the foregoing decision.