JULIAN H. RANKIN, Respondent, v. CENTRAL PACIFIC RAILROAD COMPANY, Respondent, and SOUTH PACIFIC COAST RAILROAD COMPANY, Appellant

[No. 12074. In Bank. July 7, 1887.] JULIAN H. RANKIN, Respondent, v. CENTRAL PACIFIC RAILROAD COMPANY, Respondent, and SOUTH PACIFIC COAST RAILROAD COMPANY, Appellant. Appeal—New Trial as to One Defendant—Order Granting—Party Aggrieved. —The action was brought against the Central Pacific Railroad Company and the South Pacific Coast Railroad Company to recover damages for personal injuries alleged in the complaint to have been caused by the joint negligence of the defendants. Each of the defendants answered separately, denying the negligence imputed to it. • The jury rendered a verdict in favor of the plaintiff against the Central Pacific Railroad Company, but which was silent as to the South Pacific Coast Railroad Company. Judgment was entered according to the verdict. The Central Pacific Railroad Company subsequently moved for a new trial, which was granted as to it. From the order granting the new trial, the South Pacific Coast Railroad Company appealed. Held, that the appeal should be dismissed,-as the-appellant was not a party aggrieved by the order. Appeal from an order of the Superior Court of Alameda County granting a new trial. Motion to dismiss appeal. The facts are stated in. the head-note and opinion of the court. Pillsbury & Blanding, for Appellant. D. M. Pelmas, and W. W. Foote, for Plaintiff and Bespondent. W. H. L. Barnes, for Defendant and Bespondent. [MAJORITY] The Court. The appeal of the Southern Pacific Coast Bailroad Company from the order of the court below granting a new trial is unauthorized, and must be dismissed, because not taken by “a party aggrieved.” (Code Civ. Proc., sec. 938.) The order in express terms grants a new trial only to the moving party, i. e., the Central Pacific Bailroad Com-party» Por the purpose of determining the scope and effect of an order granting a new trial, we look at the moving papers as well as the language' of the order. In this case appellant had judgment in its favor against plaintiff, and plaintiff recovered judgment against appellant’s co-defendant,—the Central Pacific Railroad Company. The latter moved for a new trial, which motion was granted in an order, of which the following is a copy: “It is hereby ordered that the verdict and judgment heretofore rendered and entered herein be and the same are hereby vacated and set aside, and that a new trial be granted the moving party herein, upon its payment to plaintiff of his costs of the former trial.” This order of the court granting a new trial did not, and could not, affect the judgment in favor of the Southern Pacific Coast Railroad Company. Appeal dismissed.