30 P.2d 535 | Cal. Ct. App. | 1934
Respondents move to dismiss this appeal upon the ground that the notice of appeal was not filed within the time required by law. No brief has been presented in opposition to the motion, and the matter was submitted without oral argument. We are of the opinion that the motion must be granted.
Section 939 of the Code of Civil Procedure provides that an appeal may be taken from a judgment within sixty days from the entry thereof; but "if proceedings for a new trial are pending, the time for appeal from the judgment shall not expire until thirty days after entry in the trial court of the order determining such motion for a new trial, or other termination inthe trial court of the proceedings upon such motion". And the third paragraph of section 660 of the same code as amended in 1929 declares: "The power of the court to pass on motion for a new trial shall expire sixty (60) days from and after service on the moving party of written notice of the entry of the judgment, or if such notice has not theretofore been served, then sixty (60) days after filing of the notice of intention to move for a new trial. If such motion is not determined within said sixty(60) days, the effect shall be a denial of the motion withoutfurther order of the court." (All italics ours.) [1]
Furthermore, it is well settled that service of notice of entry of judgment is not necessary to start the time running within which an appeal may be taken. (Lawson v. Guild,
[3] It is apparent, therefore, that said notice was not filed as required by said code section 939 within thirty days after the statutory denial of the motion for a new trial, and for that reason it was ineffectual for the purpose intended. (Iske v.Stockwell-Kling Corp.,
The appeal herein is therefore dismissed.
Tyler, P.J., and Cashin, J., concurred. *477