261 P. 706 | Cal. | 1927
This is a motion to dismiss an appeal from a judgment in favor of the plaintiff rendered by the superior court in and for the county of Imperial. The action is one to recover damages for personal injuries sustained by the plaintiff, which were alleged to have been caused through the negligent operation of an automobile. The cause was tried by a jury and a verdict in the sum of $4,000 was returned in favor of the plaintiff. Judgment was entered on the verdict on December 15, 1920. On December 17, 1920, the defendants moved for a new trial. The minutes of the court as originally recorded showed that the motion was granted as to the defendant Ashe and denied as to the defendant Dolan on Friday, December 31, 1920. Within due time the plaintiff served and filed his notice of appeal from the order granting the motion for a new trial to the defendant Ashe. On March 23, 1921, and pending the determination of his appeal from the order granting the new trial, the plaintiff filed in the trial court a notice of motion to direct the clerk of said court to correct its minutes so as to show that the order purporting to grant a new trial to the defendant Ashe had in fact been made and entered on Sunday, January 2, 1921, and not on the preceding Friday as the minutes of the court then indicated. The significance of the motion to have the minutes corrected lies in the fact that the term of office of the superior judge who made the order granting the new trial had expired on December 31, 1920, the day the order bore date. After hearing, the trial court made an order denying the plaintiff's motion to correct the minutes. Upon an appeal therefrom the district court of appeal reversed said order with directions to the trial court to ascertain the true date of the order granting the new trial and to correct its minutes accordingly. (Jackson v. Dolan,
[1] The respondent contends that as the district court of appeal has declared that the order purporting to grant the new trial was a nullity and that the motion for a new trial was denied by operation of law at the expiration of two months after the rendition of the verdict (sec. 660, Code Civ. Proc.;Jackson v. Dolan,
We think that the position of the respondent must be sustained. When the trial court enters an order denying a new trial the time for an appeal from the judgment immediately begins to run. This is the established practice and of course is not disputed. Prior to the amendment of 1915, in cases where the court entered an order granting a new trial, the time for appeal from the judgment likewise immediately began to run. True, there is confusion in the earlier authorities on this point. For example, in the case of Kower v. Gluck,
[3] In determining the effect of the amendment of section
It is earnestly insisted by appellant that to dismiss his appeal under the circumstances here shown would be tantamount to a denial of the right to appeal. But such is not the case. He had his right of appeal from the judgment within the statutory time, and not having availed himself of that right he must be deemed to have assumed the consequences of his failure to act. The motion is granted and the appeal is dismissed.
Richards, J., Langdon, J., Seawell, J., Curtis, J., Preston, J., and Waste, C.J., concurred. *474