
    [S. F. No. 1589.
    Department One.
    December 23, 1898.]
    THE PEOPLE, Appellant, v. CITY OF OAKLAND, Respondent.
    Action for Usurpation of Franchise—New Trial Order—Appeal— Dismissal.—An appeal lies from an order granting or refusing a new trial in an action for the usurpation of a franchise, brought under the provisions of section 803 of the Code of Civil Procedure; and a motion to dismiss such appeal must be denied.
    Id.—Action against City—Question of Boundaries—New Trial.— The fact that the action is against a city, and that the proceedings for changing the boundaries of the city were involved therein, cannot alter the nature of the action, or affect the right to move for a new trial therein, upon any questions of fact involved in the case, or for errors of law which may have occurred at the trial.
    MOTION to dismiss an appeal from an order of the Superior Court of Alameda County denying a new trial. S. P. Hall, Judge.
    The facts are stated in the opinion of the court.
    W. F. Fitzgerald, and Fitzgerald & Abbott, for Appellant.
    W. A. Dow, City and County Attorney, for Respondent.
   THE COURT.

A motion is made herein to dismiss the appeal from the order denying a new trial. The question involved in the appeal is the sufficiency of the proceedings for changing the boundaries of the city of Oakland, and the present motion is made upon the ground that under the statute by virtue of which those proceedings were taken there is no provision for a new trial.

The action herein is for the usurpation of a franchise, and is brought under the provisions of section 803 of the Code of Civil Procedure, and the proceedings for changing the boundaries of the city were only evidence in support of the action. Section 803 is found in chapter V of part II of the Code of Civil Procedure, and the sections under which new trials are authorized are in the same part of the code, and contain no limitations respecting the character of the action in which they are to be granted. Other questions of fact than those relating to proceedings for changing the boundaries of the city may have been involved, and errors of law may also .have occurred at the trial. Hew trials have frequently been granted in actions under this section. (People v. Sutter Street Ry. Co., 117 Cal. 604; People v. Rodgers, 118 Cal. 393.)

The motion is denied.  