276 P. 992 | Cal. | 1929
This is a motion to dismiss an appeal upon the ground that it has been filed too late. [1] The only question involved is whether or not a valid motion for a new trial was ever filed. If the purported motion for new trial was properly filed, thus extending the time for appeal, the appeal has been taken in time. This leads to another inquiry as to when the actual decision of the trial court was filed.
The facts are undisputed. On March 14, 1928, a decision of the trial court was filed, reciting, informally, the conclusion *113 to which the court had come on the facts and ending with the statement that "the petitioner is entitled to a decree of partial distribution herein." A minute order was entered, directing that "an order be prepared accordingly." Notice of motion for new trial was served and filed March 30, 1928, and called for hearing on July 13, 1928. In the interim and on April 17, 1928, more extensive findings of fact and the conclusion of law that petitioner is entitled to a decree of partial distribution as prayed for were filed. When the motion for new trial came on for hearing it was objected by the defendants and respondents here that it was improperly before the court and should be dismissed, as it had been filed before the decision of April 17, 1928. This objection was overruled, apparently, and the motion for new trial was passed upon and denied.
Respondents now seek to have this court dismiss the appeal upon this same contention. The case of Root v. Daugherty,
In accordance with the rule of the foregoing case the proceedings on motion for a new trial were premature in the instant case and they were ineffectual to extend the time for appeal.
The motion to dismiss the appeal is granted and said appeal is hereby dismissed.
Shenk, J., Seawell, J., Richards, J., Preston, J., Waste, C.J., and Curtis, J., concurred.
Rehearing denied.
All the Justices present concurred. *115