
    JOHN J. KELLY and Another, Respondents, v. ANDREW J. KERSHAW and Wife, Appellants.
    Dismissal op Appeal. — Under section 828, Code of Civil Procedure, an appeal from the judgment will not be dismissed, because an appeal from the order denying a new trial in the same case, is before the court. ..
    MOTION to dismiss an appeal from a judgment. The opinion states the facts.
    .Messrs. Dickson & Varían, for the motion.
    
      Messrs. Williams & While, contra.
    
   Boreman, J.:

This is a motion to dismiss an appeal from a j udgment and to affirm the judgment.

The ground of the motion is that on an appeal from an order denying a motion for a new trial, the entire record in the action was brought to this court, and the subject matter of the present appeal was fully before this court and subject to its consideration and determination, and that the present appeal is frivolous and for delay merely.

When this motion was filed in this court, there had been no decision in this court upon the appeal from the order denying the motion for a new trial.

Our statute expressly authorizes appeals to be taken from both the judgment and the order denying the motion for a new trial.

Laws of 1884, p. 303, sec. 828.

If we should hold the appeal from the judgment to be invalid, we negative the statute or ignore it. Its validity is not in question, and we are not authorized to negative it or ignore it. If the argument that because the whole record was before the court for consideration in the appeal from the order denying the motion for a new trial, this appeal from the judgment should be dismissed, be held good, wben tbe appeals were taken at different times, it would be just as valid wben tbe appeals are taken at tbe same time. It is equivalent to saying tbat if a party take an appeal from an order overruling or granting a motion for a new trial be is precluded from taking an appeal from tbe judgment in tbe case, wben tbe statute asserts tbe reverse. Tbe statute is not ambiguous, nor of doubtful meaning, but, on tbe contrary, it is express and clear. Tbe court is not prepared to bold tbat tbe appeal from tbe judgment was unauthorized. In tliis territory an appeal from a judgment is of more importance to an appellant sometimes than an appeal from an order denying a motion for a new trial. Where tbe appeal is from tbe judgment, tbe appellant, if the amount be of sufficient size, can take tbe case to the supreme court of the United States. But where an appeal is from an order, this cannot be done. Tbe fact tbat tbe amount in this case might not be sufficient to authorize an appeal to tbe supreme court of the United States, does not change tbe principle.

Tbe argument against our entertaining an appeal from tbe judgment wben there bad been an appeal from the order denying tbe motion for a new trial, might be of weight in regard to tbe propriety of this court bearing a second argument of tbe same points on different appeals in tbe same case, but it certainly could not go further.

Tbe motion to dismiss tbe appeal and affirm tbe judgment, is overruled.

ZaNE, C. J., and HendersoN, J., concurred.  