This is an appeal from an order striking out a statement on motion for new trial. The respondent moves to dismiss the appeal upon the ground that no appeal lies from such an order.
We have recently held, in several cases, that an order striking out a statement on motion for new trial is not appealable. (Leffingwell v. Griffing, 29 Cal. 193; Ketchum v. Crippen, 31 Cal. 365; Pendegast v. Knox, ante, 73; Genella v. Relyea, ante, 159.) It is true, we entertained such an appeal in Harper v. Minor, 27 Cal. 107, and Jenkins v. Frink, 27 Cal. 337, but the point that such an appeal did not lie was not made, and it escaped our notice.
In some districts a practice seems to have arisen in relation to proceedings touching new trials, which we think has no foundation in the Practice Act. If the defendant, in the motion, has, or supposes he has some technical grounds upon which to resist the motion, such as a failure to file and serve notice of motion, or statement, or affidavits to be used at the hearing, within the periods of time respectively provided by the statute, he has been allowed to make a counter motion to dismiss the motion for a new trial where the notice is not within time, or to strike out the statement where the notice is in time but the statement is not. In Harper v. Minor the counter motion was to dismiss the motion for a new trial, and in Jenkins v. Frink it was to strike out the statement. We are of the opinion that such a mode of procedure is irregular, and not only without the sanction of any provision of the statute *306regulating such matters, but is so inconsistent ,with the practice contemplated by the statute and so embarrassing and mischievous in its results that it ought not to be longer tolerated. Such a practice might be tolerated if such orders were appeal-able, but even then it would be a bad practice; for if such orders should turn out to be erroneous, two appeals would be necessary instead of one, in order to get the judgment of this Court upon the ultimate question whether there ought to be a new trial or not. But in view of the fact that such orders are not appealable, a moment’s reflection will show that the practice is altogether at variance with the methods of the statute, and tends materially to embarrass and complicate the proceedings to obtain a new trial, if not to entirely deprive the party seeking a new trial of his right to the opinion of this Court as to whether he is entitled to it or not.
Suppose the motion for a new trial to be dismissed, or, what amounts to the same thing, the statement or affidavits upon which it is based stricken out, how is the plaintiff in the motion to proceed thereafter? He may claim that his notice or statement, as the case may be, is in time, and if so he is entitled to the opinion of this Court upon that question. How is he to get his case here within any of the modes fixed by the statute? If no way has been provided, or if there is a way and it is unnecessarily circuitous and complicated, a practice which necessitates a resort to it ought not to be countenanced.
It is suggested that he may still prosecute his motion for a new trial and insist upon an order denying it, and then appeal from the order. There is a manifest absurdity involved in the idea of further prosecuting a motion which has been dismissed, or the foundation upon which it rests stricken out. But overlook the absurdity and suppose the thing to have been done, what will come to this Court on the appeal—of what will the record consist? In passing upon the question of new trial we are confined to the record upon which the Court below ruled. By the very conditions supposed the Court below had no record before it when it denied the motion, so we have *307none before us, and, as a matter of course, the order must be affirmed.
But it is suggested that the order dismissing the motion or striking out the statement may be brought up on the appeal from the order denying the motion by a bill of exceptions. Suppose that this could be done, it would be necessary to come here twice before the motion for a new trial could get here; for the first appeal would merely reverse the order striking out the statement, and a statement would thereafter have to be settled by the Court below and the motion for a new trial again decided before we could reach the question. But it cannot be brought here by a bill of exceptions. The definition of an excption as given in section one hundred and eighty-eight of the Practice Act is not broad enough to cover such a case. An exception as there defined is an objection taken at the trial, or at any time from the calling of the action for trial to the rendering of the verdict or decision.
It is next suggested, that on the appeal from the order denying the new trial, the ruling of the Court in dismissing the motion, or striking out the statement, can be brought up by a statement made on such appeal, as provided in section three hundred and thirty-eight. Suppose that this can be done, such a course would still be objectionable, because it would make it necessary to bring the case here twice before the motion for a new trial could be reached, for the reason, as stated above, that until the error in dismissing the motion or striking out the statement has been corrected, no statement for the purposes of the motion for a new trial can be prepared. But we do not consider that orders referred to in the three hundred and thirty-eighth section include orders granting or refusing new trials. Motions for new trials rest here, as in the Court below, upon the record made and settled before the motion is heard. There can, therefore, be no occasion for a further statement on an appeal from such an order, for we can only review it upon the same record upon which, the Court below decided. The orders referred to in section three hundred and thirty-eight are evidently such special *308orders as are made during the progress of the case or after final judgment which are appealable, and are not based upon a record previously made and settled. Where such is the case a statement may be necessary, and hence the section in question has provided that one may be made if required; but where, as here, the record is made in advance of the order, there can be no occasion for a subsequent record.
From these considerations we think it clear that the practice" pursued in this case is out of the line of procedure adopted by the code. It is manifest that under either mode above suggested the first appeal, though nominally from the order denying or granting a new trial, is in effect an appeal from the order striking out the statement, for that order is the order and the only one which is in fact reviewed, and the order from which the appeal appears to be taken is not reviewed at all, and cannot be until the case has gone back and an opportunity has been given to the parties to make a record upon which it can be heard.
To show the utter absurdity of such a practice it is only necessary to trace it one step further. If a statement can be made'up under the three hundred and thirty-eighth section, after a motion for a new trial has been decided, it must be done within twenty days. Suppose a dispute should arise as to whether it was filed within time and a motion should be made to strike it out also, and should be sustained, how Would the case stand then? Would still another statement be in order ? If a statement would be in order in the first instance, it would for the same reason be in order in the second, and so on to the end of time; statement after statement could be struck out and all access to this Court on the part of the plaintiff in the motion be cut off. A practice which leads to such absurd consequences cannot be sustained.
A party moving for a new trial is entitled to a ruling upon • his motion upon the basis upon which he presents it, in order that he may have and enjoy unembarrassed his right of appeal to this Court. If his notice or statement has not been served or filed within time, that is a good reason why his motion *309should be denied when finally brought to a hearing, but under the method of procedure prescribed by the code it is not intended that the record upon which the motion is made may be first stricken out and the motion then denied. Such a course is in effect a denial of any hearing upon the motion and of an appeal to this Court in a case where an appeal is given.
There is no force in the suggestion that the defendant in ■the motion, if not allowed to take this course, will be forced to waive objections as to time. If the notice and statement, or either of them, is not filed within time, he may safely rely upon such facts as fatal to the motion when brought to a hearing. If, however, as is generally the case, there is some doubt as to whether they are within time, and he does not de.sire to take any risk, he may propose amendments without waiving his right to object that they are not within time by a simple preface that he does so without prejudice to his right to object at the hearing to the notice or statement upon those grounds. By so doing he waives nothing; on the contrary, he preserves all his rights in the premises. The Court will then proceed and settle the statement and at the hearing pass upon the objections so reserved. If the motion is denied an appeal can then be taken to this Court, where the whole matter can be reviewed" upon the record upon which the Court below heard the motion. Such is the plain and obvious course prescribed by the statute and no departure from it can be indulged, without, as we have seen, mischievous if not absurd results.
The appeal must be dismissed; but we. advise the Court below ,to set aside its order striking out the statement and allow the motion for a new trial to proceed in the manner suggested.