¶1The appeal is taken from an order granting a new trial, and from an order refusing to vacate the order granting the new trial. The foregoing opinion proceeds on the latter order alone. I would be content with merely expressing my dissent, were it not that the opinion establishes sl new rule of practice, and in doing so overrules, without mentioning, Quivey v. Gambert, 32 Cal. 304, and the authorities on which the decision in that case was based, and the large number of cases following Quiver/ v. Gambert. Indeed, so constant and *335uniform have been the decisions since that case, that by far the larger number have been rendered orally from the bench. The appeal in that case was dismissed because the order was not a special order made after final judgment. hTor is the order in this case a special order after final judgment in the sense of the statute. I do not propose, at this time, to reopen the discussion of the question involved in those cases.
¶2I concur with my associates in the opinion that the action of the Court in passing on the motion for a. new trial, before it was submitted, was erroneous; but I have no manner of doubt that the error can be corrected on an appeal from the order granting a new trial.