Dore v. Klumpke

73 P. 1064 | Cal. | 1903

This is a motion to dismiss an appeal taken from an interlocutory judgment in an action for partition. The interlocutory decree was filed September 21, 1902. Judgment thereon was entered on September 29, 1902, and this appeal was taken December 30, 1902. Section 936 of the Code of Civil Procedure makes provision for an appeal from such an interlocutory judgment. Section 939 (subd. 3) of the Code of Civil Procedure establishes the time within which an appeal may be taken, and limits it to "within sixty days after the order of interlocutory judgment is made and entered in the minutes of the court or filed with the clerk." Admittedly, this appeal is not taken within that time, and therefore must be dismissed upon the authority of the statute, supported by the decisions of this court in Watson v. Sutro, 77 Cal. 609, and Bartlett v. Mackey,130 Cal. 181. In response to this, however, it is urged that as upon his appeal from the judgment the appellant must bring to this court the judgment-roll, the time in which he is to take his appeal begins to run from the date when such judgment-roll is actually made up; but this is contrary to the express language of the statute and to all of the decisions of this court upon the matter. It is the entry of the judgment and not the mere ministerial act of the clerk in compiling the judgment-roll — which by the very contemplation of the law is to be done after the entry of the judgment (Code Civ. Proc., sec. 670), — which sets the statute of limitation running.

The appeal is therefore dismissed.

McFarland, J., and Lorigan, J., concurred.

Petition for hearing in Bank received too late to admit of consideration.