119 Cal. 27 | Cal. | 1897
Motion to dismiss an appeal from a decree of final distribution, on the ground that it was prematurely taken.
Section 1704 of the Code of Civil Procedure requires that all orders and decrees in probate proceedings “must be entered at length in the minute book of the court”; and section 1715 of said code provides that an appeal “must be taken within sixty days after the order, decree, or judgment is entered.” A decree is entered within the meaning of the last section when it is “entered at length in the minute-book of the court,” as provided in section 1704; and an appeal taken before such entry is premature and vests this court with no jurisdiction of the cause, and will be dismissed. (In re Rose, 72 Cal. 577; Home of Inebriates v. Kaplan, 84 Cal. 486; Menzies v. Watson, 105 Cal. 109.)
The decree in this instance was signed by the judge November 24, 1896, and filed with the clerk on the following day, November 25th; but it was not entered in the minutes until December 14th following. The notice of appeal was served and filed November 30th, and the bond on appeal filed December 3, 1896. It thus appears that the appeal was perfected some eleven days prior to the entry of the decree, and was therefore premature.
Appellant’s counsel contends, however, that he was misled into taking the appeal thus early by an entry found on the clerk’s register, which tended to indicate, and which he interpreted to mean, that the decree had been entered on November 25, 1896; and he contends that inasmuch as the register is an official record which the clerk is required to keep, in which the successive steps in the proceeding are to be correctly noted, and as this
The objection that respondents are estopped by their acts from pressing this motion cannot avail appellants, even if.it be conceded that the facts show such estoppel. Where the appeal is premature, equally with where it is too late, this court has no jurisdiction to entertain it, and, upon the fact appearing, it will be dismissed of the court’s own motion.
The appeal is dismissed.
Harrison, J., McFarland, J., Temple, J., and Garoutte, J., concurred.
Rehearing denied.