The opinion
SMITH, J., Concurring.
I concur in the order denying the motion to dismiss the appeal in this ease, and also in the opinion that the decision in
Murphy
v.
Stelling,
138 Cal. 642 , [ 72 Pac. 176 ], is directly in point. But I regard that case as merely an application of the more general principle that
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all orders made in proceedings for a new trial which have the effect of finally disposing of the motion are special orders made after final judgment, and therefore appealable. (Hayne on New Trial, sec. 146;
Calderwood
v.
Peyser,
42 Cal. 115 , and cases cited;
McDonald
v.
McConkey,
57 Cal. 326 ;
Clark
v.
Crane,
57 Cal. 633 ;
Griess
v.
State Investment Co.,
93 Cal. 411 , [ 28 Pac. 1041 ];
Stonesifer
v.
Kilburn,
94 Cal. 42 , [ 29 Pac. 332 ];
Sutton
v.
Symons,
97 Cal. 476 , [ 32 Pac. 588 ] ; same case, 100 Cal. 576 , [ 35 Pac. 158 ];
Symons
v.
Bunnell,
101 Cal. 223 , [ 35 Pac. 770 ];
Kaltschmidt
v.
Weber,
136 Cal. 675 , [ 69 Pac. 497 ];
Murphy
v.
Stelling,
138 Cal. 641 , [ 72 Pac. 176 ].) This, however, as said in the ease last cited, will not apply to a mere refusal of the court to settle the statement in cases where the moving party is by law entitled to have it settled. In such a case there is no order, and, therefore, the only remedy is
mandamus.