184 P. 39 | Cal. Ct. App. | 1919
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *701 Amy Bates and ten other property owners sued the Ransome-Crummey Co., a corporation, and Louis Lightston, treasurer of the city of San Jose, to quiet title to their respective properties and for an injunction restraining the defendants from interfering with the plaintiffs' properties or asserting any interest therein or lien thereon. Louis Lightston, as treasurer, filed a disclaimer. The Ransome-Crummey Co. answered, and by way of cross-complaint sought to establish the lien of a street assessment and the validity of bonds issued to represent the assessments on the respective parcels of land of the plaintiffs. After answer to the cross-complaint, the case was tried, findings responsive to the issues of fact were signed, and as a conclusion of law therefrom the court determined the plaintiffs were entitled to a judgment and decree quieting their titles. The appeal by the defendants is from the judgment entered pursuant to the decision.
At the outset the court is met with the claim on the part of the respondents that the appeal was not taken in time. If this claim is well founded in law this court has no jurisdiction of the appeal and cannot consider any error claimed to have been made by the trial court. The jurisdiction of the trial court to render its judgment is not questioned.
[1] It has always been held that an appeal from a judgment taken after the time limited by the statute to appeal cannot be considered and must be dismissed. (Gray v. Palmer,
In 1915 the legislature amended sections 650,
[2] Under these amended sections the time of serving notice of motion for a new trial and to propose a bill of exceptions is made dependent upon the service of notice of the entry of the judgment, while the time to appeal begins to run from the time of entry of judgment. The code provides that upon the entry of the judgment it shall be docketed, and when so docketed the judgment becomes a lien upon the real property of the judgment debtor. The docket is a public record and as such imparts notice to all persons interested. (Code Civ. Proc., secs. 668, 671-673.) [3] The party aggrieved by a judgment under these amended provisions of the statutes was given the election *703 of appealing directly within sixty days from the entry of the judgment, or, if he desired to move either for a new trial or to vacate the judgment in the trial court, he might do so. If he did so within the sixty days allowed for an appeal, the time within which he might appeal was extended automatically until thirty days after the determination of the new trial proceedings. No such provision for extension of time was made in the statute because of the pendency of proceedings to vacate the judgment on the ground that the conclusions of law were not supported by the findings. [4] The losing party was not required to move for a new trial, until he received notice of the entry of the judgment, unless the record showed he had waived such notice. He was not required to wait, however, until he received the notice of entry, but might have given notice of his intention to move for a new trial at any time after judgment. Of his own motion, therefore, he might have extended the time within which to appeal by serving notice of motion for new trial at any time within the sixty-day limitation for appeal, even though he had not received notice of the entry of the judgment. [5] If at the expiration of the sixty-day period within which an appeal might be taken, no notice of intention to move for a new trial was given, in other words, if there was no proceeding for a new trial pending, the time to appeal from the judgment elapsed, and the privilege of appealing from the judgment or of having a new trial order reviewed on appeal terminated. [6] There is no statutory requirement by which the prevailing party in a suit is required to give notice of the entry of the judgment. Because there is no such provision, the judgment debtor might in effect indefinitely extend the time of appeal by waiting until he was served with notice of the entry of judgment, and might appeal from the judgment at the expiration of six months or a year or, for that matter, ten years from its entry, if it should be held that the right of appeal does not terminate at the expiration of sixty days after the entry of judgment if no proceedings for a new trial are then pending.
In the particular case the findings of fact and conclusions of law were filed October 19, 1915. Judgment was entered November 24, 1915; the sixty days within which an appeal might have been taken expired January 23, 1916. Notice of *704 intention to move for a new trial was dated and presumably served February 21, 1916, or twenty-nine days after the time to appeal from the judgment had expired without new trial proceedings having been commenced. Motion for new trial was denied April 14, 1916, and notice of appeal was served and filed April 24, 1916, or more than three months after the time to appeal had elapsed.
On behalf of the appellants it is argued that under the rule of liberal construction doubtful clauses affecting the right of appeal should be construed in favor of the right. It does not appear that the language of section 939 is doubtful. It provides that the appeal shall be taken within sixty days, but the time is extended if, or as the appellants contend, when, new trial proceedings are pending. In the present case no such proceedings were pending when the time of appeal elapsed.
[7] It is argued that under the construction given to section 939 of the Code of Civil Procedure it is unconstitutional as in violation of section 1 of article XIV of the constitution of the United States, because the appellants are deprived of their property without due process of law and are denied equal protection of the laws. Similar contentions have failed to meet the approval of courts. The matters of motions for new trial and appeal are entirely within the control of the legislature. It might altogether abolish the right to move for a new trial, as it has abolished the privilege of appealing from an order made upon a motion for a new trial. (Lancel v. Postlethwaite,
[8] It is argued because it is the duty of the plaintiff diligently to prosecute an action to a finality, that so long as the right of the defendant to move for a new trial or to move to vacate the judgment exists, it does not become final, but citation of authority is not necessary to support the statement that for the purposes of appeal the judgment is final under the express terms of the statute as soon as it is entered. When the defendant fails within sixty days after the entry of judgment either to appeal or to commence proceedings for a new trial, the judgment becomes final for all purposes at the expiration of the sixty-day period. The matters determined are res judicata under the rule of *705 United States v. Throckmorton,
The appeal is dismissed.
Langdon, P. J., and Haven, J., concurred.
A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on October 13, 1919. (See Pacific Light Power Co. v. Kauffman
All the Justices concurred.