I dissent.
By a skillful process of legal legerdemain the majority opinion attempts to bring to life an attachment which died a natural death on January 28, 1952, when plaintiff’s motion for a new trial was granted by the trial court.
It is conceded by the majority that pursuant to sections 553 and 946 of the Code of Civil Procedure an attachment is dissolved when judgment is rendered in favor of the defendant unless he perfects an appeal and gives an undertaking within five days after receiving notice of entry of judgment, and that it is not kept alive by proceedings on motion for a new trial.
In the light of this concession let us examine the record:
(1) November 26, 1951. Judgment for defendant entered.
(2) December 4, 1951. Plaintiff served and filed notice of intention to move for a new trial on all statutory grounds.
(3) January 3, 1952. Defendant served and filed notice to dissolve attachment.
(4) January 28, 1952. Motion for new trial granted.
(5) February 6, 1952. Motion to dissolve attachment denied.
(6) The agreed statement on appeal states: “No appeal has ever been taken by [defendant] Henry K. Henderson from said judgment. No undertaking on appeal was filed by Henry K. Henderson within five days after the entry of said judgment or at any other time.”
It is true that no formal notice of entry of judgment was *7given by defendant, but both plaintiff’s notice of intention to move for a new trial and defendant’s notice of motion to dissolve the attachment refer to “the judgment heretofore made and entered in the above entitled action.” It seems to me that it is stretching legalism to the breaking point to say, in view of this record, that plaintiff did not have adequate notice of entry of judgment. But conceding that he did not, and that his time to perfect an appeal from the judgment and give an undertaking did not expire until five days after such notice was given, or his time for appeal had expired, or had lost his right to appeal, there can be no question that the latter event occurred on January 28th, 1952, when his motion for a new trial was granted. This event terminated his right to appeal, as it is well settled that an appeal does not lie from an unconditional order or judgment in favor of the appellant and such an appeal must be dismissed (3 Cal. Jur.2d § 110, p. 566). The fact that plaintiff could have cross-appealed from the judgment if defendant had appealed from the order granting the new trial, is beside the question, as defendant did not appeal and the order granting plaintiff’s motion for a new trial has become final. There can be no question that plaintiff’s right to appeal from the judgment was lost when his motion for a new trial was granted. Conceding that plaintiff would have had a right to cross-appeal from the judgment if defendant had appealed from the order granting the new trial, since defendant did not appeal from said order, plaintiff’s right to cross-appeal never came into existence.
The order denying defendant’s motion to dissolve the attachment was entered February 6, 1952, nine days after the motion for a new trial was granted. At that time plaintiff had not and could not comply with the requirements of sections 553 and 946 of the Code of Civil Procedure, and the motion to dissolve the attachment should, therefore, have been granted.
Even accepting the unsound reasoning of the majority, that at the time defendant’s motion to dissolve the attachment was denied, plaintiff’s time to appeal had not expired, because he had the right to cross-appeal if defendant appealed from the order granting the new trial, and, therefore, the motion was properly denied, it will avail plaintiff nothing, as the attachment must now be dissolved because of plaintiff’s noncompliance with the provisions of sections 553 and 946 of the Code of Civil Procedure.
*8The last cited code sections and decisions construing them make it clear that the pendency of a motion for a new trial or the granting of that motion does not operate to stay the extinguishment of an attachment, or that an attachment continues in force until the motion is determined. While the Legislature saw fit to provide for keeping the attachment alive in event of an appeal by plaintiff, and there appears to be no reason why they did not make a similar provision in case of a pending motion for a new trial, the fact remains that section 553, supra, requires without limitation (except in the ease of appeal) that when defendant recovers judgment the attachment must be discharged. Nothing is said about a motion for new trial and I know of no other statute which makes the pendency of such a motion operate to keep the attachment alive. There is no provision for giving an undertaking to keep the attachment in force when a motion for a new trial is made as there is when an appeal is taken. The undertaking in the case of an appeal is to give protection to the defendant in addition to that afforded by the undertaking to obtain the attachment. (Albertsworth v. Glens Falls Indem. Co., 84 Cal.App.2d 816 [192 P.2d 66].) The absence of a provision for such added protection pending the disposition of a motion for a new trial indicates that the pendency of such a motion does not keep the attachment alive. It has been held that a motion for a new trial does not in itself stay the execution of the judgment by the prevailing party. (.People v. Loucks, 28 Cal. 68; Jones v. Spears, 56 Cal. 163; Harris v. Barnhart, 97 Cal. 546 [32 P. 589] ; Kokole v. Superior Court, 17 Cal.App. 454 [120 P. 67] ; Knowles v. Thompson, 133 Cal. 245, 247 [65 P. 468] ; 121 A.L.R. 686.) Before it was amended in 1907 and 1909 (Stats. 1907, p. 708; 1909, p. 967), section 553 did not contain the provision for keeping the attachment alive by perfecting an appeal, and it was held that an appeal by plaintiff from the judgment and a reversal thereof did not stay the discharge of the attachment or revive it. (Loveland v. Alvord Consol. Quartz Min. Co., 76 Cal. 562 [18 P. 682]; Hamilton v. Bell, 123 Cal. 93 [55 P. 758]; contra: cases collected 115 A.L.R. 598.) And under the prior law the lack of finality of the judgment with regard to appeal did not prevent the discharge of the attachment. (Aigeltinger v. Whelan, 133 Cal. 110 [65 P. 125].) Indeed, since the amendment to 553, the making in the trial court and granting of a motion to vacate a judgment for' defendant does not preserve the attachment (Clark v. *9Superior Court, 37 Cal.App. 732 [174 P. 681]). Under a statute similar to ours the same result has been reached in regard to a pending motion for a new trial (Ranft v. Young, 21 Nev. 401 [32 P. 490]). It is clear, therefore, that the Legislature has not made either the pendency or granting of ,a motion for a new trial after judgment for defendant effective to keep alive or revive an attachment.
Notwithstanding the foregoing, the majority affirms an order which is obviously invalid and which must be vacated by the trial court when this decision becomes final. This, however, will necessitate further proceedings in the trial court and another appeal if the losing party sees fit to thus prolong the litigation.
This is unfortunate in view of the overcrowded condition of our court calendars. It also violates the policy of our courts to decide cases so as to terminate litigation wherever possible in the interests of justice.
For the foregoing reasons, I would reverse the order.