J. G. STEARNS, Appellant, v. AZOR S. MARVIN, Executor, et al., Respondents

J. G. STEARNS, Appellant, v. AZOR S. MARVIN, Executor, et al., Respondents. An appeal will not lie from an order of court refusing to set aside an interlocutory judgment. It should be taken upon the order itself. Appear from the Superior Court of San Francisco. In the progress of this case, judgment was first entered against the defendants. A motion, founded upon an affidavit, was after-wards made to set aside the judgment and admit other parties, which the court ordered, in accordance with the application, May 31,1853. The new parties came in, and answered June 1,1853. And on the 8th August, a motion was made by plaintiff’s counsel to dismiss the suit as to the parties introduced by the previous order, and for judgment against defendant; which motion was denied, and plaintiff appealed. [MAJORITY — Heydenfeldt, Justice,] Heydenfeldt, Justice, delivered the opinion of the court. Murray, Chief Justice, concurred. In this case no appeal lies from the refusal of the motion made by the plaintiff. If, as has been held, an appeal lies from an interlocutory order, it should have been taken upon the order setting aside the judgment. Appeal dismissed.