Moore v. Strayer

165 P. 530 | Cal. | 1917

Motion to dismiss an appeal.

The judgment from which plaintiffs and cross-defendants appeal was entered on May 1, 1916. Appellants, without waiting for service of notice of the decision of the court (which notice, as shown by the record, was in fact duly served on June 23d), served and filed their notice of intention to move for a new trial on May 15th, which motion, pursuant to notice given of the time of hearing thereof, was made July 3d. The court, however, made no ruling thereon until September 18th, on which date it made a formal order denying the motion. Respondent's contention is that the motion was denied by operation of law three months after the filing of the notice of intention, which expired on August 15th, and hence the notice of appeal filed October 17th was too late.

We do not so construe the statute. Section 941b of the Code of Civil Procedure provides that notice of appeal shall be filed within sixty days after entry of judgment, provided, however: "If proceedings on motion 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 in the trial court of the proceedings upon such motion." The words "other termination" include by way of reference the denial of the motion by operation of law as provided in section660 of the Code of Civil Procedure, where it is said: "The power of the court to pass on motion for new trial shall expire within three months after the verdict of the jury or service on the moving party of notice of the decision of the court. If such motion is not determined within said three months, the effect shall be a denial of the motion without further order of the court." Under this provision the three months' time within which the court was empowered to act upon the motion did not commence to run until "service on the moving party of notice of the decision of the court." This notice, as we have seen, was not served until June 23d, which date marks the time from which to measure the three months' period within which the court was vested with jurisdiction to pass upon the motion. If the rights of the party appealing were alone to be considered, the giving of the notice of intention might, as to him, be construed as a waiver of service of notice of decision, but the provision relates to the power of the court, jurisdiction of which to pass upon the motion is divested only by the service of notice of decision followed by the lapse of a period of three months, during which it is empowered to act on the motion for a new trial. It thus appears that the time within which the court was, under the provision of section 660, supra, required to act upon the motion did not expire until September 23d. The act of the court in making the order denying the motion was had on September 18th, which was five days before the expiration of the three months from service of the notice of decision.

It follows that the notice of appeal served on October 17, 1916, was within the time specified therefor.

The motion to dismiss is denied.

Sloss, J., Melvin, J., Shaw, J., Henshaw, J., and Angellotti, C. J., concurred.