27 P.2d 73 | Cal. | 1933
The motion of respondent to dismiss the appeal of defendant C.K. Lewis is before this court upon hearing granted after decision by the Appellate Court, Second *412 District, Division One, denying said motion. We are of the view that said appeal must be dismissed.
Defendants C.K. Lewis and A.B. Crist were jointly tried and convicted in the Superior Court of Los Angeles County of burglary and conspiracy to commit burglary. Judgments against them were rendered on December 1, 1932. On January 3, 1933, respondent filed notice of motion in the Appellate Court to dismiss the appeal taken by Lewis from said judgment. It appeared from the record on appeal as it then stood that neither defendant gave oral notice of appeal upon the pronouncement of judgment; that defendant Crist filed written notice of appeal on December 2, 1932, but that defendant Lewis did not file notice until December 5, 1932, which was beyond the two-day period after judgment prescribed by section
In the affidavit of Lewis' attorney in support of the motion for diminution he averred that Lewis' name was "improperly omitted" from the notice of appeal filed in the superior court on December 2, 1932, and that on March 23, 1933, said court made its order "reforming said notice of appeal by inserting therein the name C.K. Lewis". He presented for filing a supplement to clerk's transcript containing said order of March 23, 1933, and also an "amended" notice of appeal. The order is entitled "Order Reforming Notice of Appeal", and is as follows: "Good cause appearing therefor, it is hereby ordered that the clerk of this Court insert the words C.K. Lewis in that Notice of Appeal herein filed on December 2, 1932, after the words A.B. Crist where the same appear." The notice of appeal as it appears in the supplement to clerk's transcript is as follows:
and C.K. Lewis
"Comes now the defendant, A.B. Crist,/by his Attorneys Robert H. Patton and John Mulligan, and hereby gives notice that he appeals to the District Court of Appeal from *413 the judgment of conviction herein rendered against the defendant and C.K. Lewis A.B. Crist/and from the order of the Trial court denying the Motion for New Trial as against defendant A.B. Crist and C.K.Lewis.
"ROBERT H. PATTON "JOHN MULLIGAN by "ROBT. H. PATTON "Attorneys for Defendant A.B. Crist.
"Amended by order of Court by inserting the words `and C.K. Lewis', this 20 day of April, 1933.
"ROY P. CLARK, "Clerk, Dept. 26."
The words "and C.K. Lewis", as italicized above, indicate the additions made to the Crist notice of appeal as filed on December 2, 1932. It is apparent from the above quotation that on April 20, 1933, the notice of appeal on file in the office of the county clerk of Los Angeles County since December 2, 1932, was altered by writing or typing in the name of Lewis, as indicated above, under authorization of the order of March 23, 1933. There is no claim that a mistake had been made in compiling the original record on appeal, as a result of which it did not correctly embody the proceedings had or documents on file (People v. Dresser,
[1] The requirements as to the time for filing notices of appeal are mandatory and jurisdictional in both civil and criminal actions. (People v. Walker,
[3] The time for filing notice of appeal cannot be extended by stipulation or other action of the parties to the proceeding, or by order of the court. (See cases cited, supra.) The execution and filing of notice of appeal is done by a party or his attorney, and is not an act of the court. Where through inadvertence or mistake of a party or his attorney notice is not filed within the time limited by law, neither the trial court nor appellate court can afford relief thereafter by permitting filing of a tardy notice. [4] What the trial court cannot do directly it cannot accomplish indirectly by authorizing amendment or alteration of a co-defendant's timely notice of appeal by writing in the name of the defendant who failed to file notice in time. The order of the superior court "reforming" the notice of appeal was rendered two months after the attorney-general had moved the Appellate Court on January 23, 1933, to dismiss the appeal of Lewis. By virtue of the fact that the Lewis notice was not in time, the Appellate Court was without jurisdiction to hear his appeal, and the lower court could not confer jurisdiction on it by amending the *415 Crist notice nunc pro tunc as of December 2, 1932. [5] Although the evidence relied on by Lewis to show that his name was "improperly omitted" is not before us, and the order of March 23, 1933, contains the recital "good cause appearing" for the amendment, Lewis' appeal is not preserved thereby, since under no circumstances was the court authorized to extend the time for filing the notice of appeal. The order of March 23d was void abinitio.
The appeal of defendant Lewis is dismissed.
Preston, J., Waste, C.J., Curtis, J., Thompson, J., Shenk, J., and Langdon, J., concurred.