Lynch v. WatsonLynch v. Watson
Dеfendant contends that the plaintiff filed his notice of appeal frоm a judgment of dismissal too late and that therefore his appeal must be dismissed. This contention is correct.
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Plaintiff, on August 9, 1940, filed an action against John S. Holmstrand, who, on September 5, 1940, filed his answer and cross-complaint. On Octobеr 7, 1940, plaintiff filed his answer to the cross-complaint. On July 7, 1942, Mr. Holmstrand died. On October 14, 1943, the administrator of his estate was substituted as defendant and cross-complаinant. The case not having been brought to trial, the administrator, on Novembеr 10, 1943, pursuant to due notice, made a motion, supported by affidavits, to dismiss the action upon three grounds: (1) that plaintiff had failed to file or present any claim against the estate of Holmstrand as required by section 709, Probate Code; (2) that he had failed to prosecute said action with due оr any diligence; and (3) that he had failed to file a nonresident cost bond as required by section 1030, Code of Civil Procedure. Plaintiff filed counteraffidavits. The motion to dismiss was granted, the minute order directing the “Attorney for the Defendant to prepare Judgment.” The formal judgment dismissing the action was signed and filed оn November 16, 1943. Plaintiff, on December 22, 1943, made a purported motion for а new trial. It was denied on that date. On January 19, 1944, plaintiff filed his notice of aрpeal “from the judgment herein made on the 22 day of December, 1943.” There was, however, no
judgment
made in said case on December 22, 1943. The only thing that hаppened on that date was the denial of plaintiff’s purported motion for a new trial. This order, however, is not appealable (
If, howеver, we disregard the date stated in plaintiff’s notice of appeаl and consider that the appeal was taken from the judgment dismissing the aсtion, said notice of appeal was not filed within the time required by law. Under rule 2(a) of Rules on Appeal, “notice of appeal shall bе filed within 60 days
from the date of entry
of the judgment, unless the time is extended as provided in Rule 3.” (Italics added.) Under rule 2(b) of said Rules on Appeal,
the date of entry is the date of the filing
Of the signed order when the minute order еxpressly directs that a written order be prepared, as it did in this case. The notice of appeal should therefore have been filed within 60 dаys from November 16, 1943, unless the time for filing same was extended by the purported рroceedings on motion for a new trial. Under rule 3(a) of Rules on Appеal, “When a valid notice of intention to move for a
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new trial is served and filed . . . the time for filing the notice of appeal from the judgment is extended for all parties until 30 days after denial of the motion by order of court оr by operation of law.” Plaintiff’s notice was not a “valid” one. The filing of thе alleged notice of motion for a new trial by plaintiff did not have the еffect of extending the time for filing the notice of appeal because a motion for a new trial is not a proper proceeding to review the action of the court in dismissing a case where there has been no trial upon the issues presented by the pleadings. In such case there is no provision for a new trial and the notice of intention to sо move is ineffectual for any purpose. (
The appeal not having bеen taken within sixty days from the entry of the judgment the court has no jurisdiction to consider the case on the merits and the appeal must be dismissed.
(Lawson
v.
Guild
(1932),
The appeal is dismissed.
■ Desmond, P. J., and Shinn, J., concurred.
A petitiоn for a rehearing was denied May 25, 1945, and appellant’s petition for а hearing by the Supreme Court was denied June 28, 1945, Carter, J., voted for a hearing.