Reber v. Superior Court

Mar 2, 1961

Civ. 19641

Versions:189 Cal. App. 2d 622

11 Cal. Rptr. 534

1961 Cal. App. LEXIS 2222

DUNIWAY, J.

Petition for a writ of mandate or prohibition to compel dismissal of an appeal from the municipal court or to prevent further proceedings therein. Because the appeal was filed too late, the petition must be granted.

Muller, the real party in interest, was plaintiff in the municipal court. According to the petition, judgment against him was entered on May 24,1956. On July 30, he filed a notice of motion for a new trial. This wаs 67 days after entry of judgment. The motion for a new trial was denied by operation of law (Code Civ. Proc., § 660) not later than September 28. On October 11, notice of appeal to the appellate department of respondent court was filed. Subsequently, that cоurt denied a motion to dismiss the appeal.

*624 As a return to the alternative writ, Muller has filed (1) a “motion to quash and dismiss the alternative writ,” which is in substance a demurrer to the legal suffiсiency of the petition; (2) a demurrer to the petition, and (3) an answer to the pеtition. The answer admits ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍that the record shows that the judgment was entered on May 24, but denies thаt it was so entered and alleges that it was not entered until ‘ ‘ sometime after May 28, 1956 and on or before July 25, 1956, and at a time very close to or on the 25th day of July, 1960 [sic] itself, and entered just immediately preceding the filing of the Notice of Entry of Judgment on July 25, 1960 [sic].” It also alleges that notice of entry of judgment was served on July 24, 1956, and filed on July 25, 1956.

Muller has also filed a motiоn for an order that the question as to when the judgment was entered be tried by a jury (Code Civ. Proc., § 1090). We think therе is no necessity for such a trial. No genuine factual issue is tendered by the answer. Muller himself brought the record before us in his petition for a writ of certiorari in Muller v. Municipal Court, 176 Cal.App.2d 156 [1 Cal.Rptr. 207]. As is there cleаrly shown, judgment was in fact entered on May 24, by the clerk, following the verdict of the jury, pursuant tо Code of Civil Procedure, section 664. (Pp. 158-160.) We ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍also there held that the notice of entry of judgment was sufficient. (Pp. 160-161.) But we declined to pass upon the timeliness of the aрpeal. That question is now properly before us.

Even if we assume that the allegations of Muller’s answer as to time of entry of judgment are correct, the appeal was filed too late. The time within which the trial court could pass upon Muller’s motiоn for a new trial expired “sixty (60) days from and after service on the moving party of written nоtice of the entry of the judgment” (Code Civ. Proc., § 660; the 1959 amendment to this section is not here appliсable). Sixty days from and after July 24 is September 22. The motion was then denied by operatiоn of law. Notice of appeal was filed more than 60 days after the latest day on which Muller claims the judgment was entered (rule 2(a), Rules on Appeal from Municipаl Courts) and more than 15 days after entry, automatic under Code of Civil Procedure, section 660, of thе order denying the motion for a new trial (Rule 3 of the same rules). (Millsap v. Hooper, 34 Cal.2d 192, 194-195 [208 P.2d 982] ; Mellin v. Trousdell, 33 Cal.2d 858 [205 P.2d 1036].)

If, on the other hand, we аssume, ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍as we believe we must, that *625 the judgment was entered on May 24, the result is the same. It would bе the same even if we were to disregard the date of service of notice оf entry of judgment, so that the last day on which the court could pass on the motion for the new trial would be “sixty (60) days after filing of the notice of intention to move for a new trial” (Code Civ. Proc., § 660), i.e., September 28.

Rulе 2 (a), Rules on Appeal from Municipal Courts provides : “. . . a notice of apрeal shall be filed . . . not in any event later than 60 days from the date of entry of the judgment, unless the time shall be extended as provided in Buie 3.”

Buie 3 provides: “When a valid notice of intention to move for a new trial is . . . filed . . . within the time within which, under Rule 2, ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍a notice of appeal from the judgment may be filed, . . . the time for filing the notice of appeal . . . is extended for ... 15 days after . . . entry of the order denying the motion ...” (Emphasis added.)

Here, the notice of intention to move for a new trial was not filed within the time prescribed in rule 3. Consеquently, the time to appeal was not extended, and the appeal was tаken too late. (Chain v. Chain, 119 Cal.App.2d 469 [259 P.2d 454] ; Kientz v. Haines, 117 Cal.App.2d 787 [257 P.2d 41] ; Anderson v. Anderson, 87 Cal.App.2d 327 [197 P.2d 65] ; King v. Wilson, 101 Cal.App.2d 242 [225 P.2d 270]; Costa v. Regents of University of California, 103 Cal.App.2d 491 [229 P.2d 867].) The time within which to appeal being jurisdictional, the writ must issue. (Vogel v. City of Millbrae, 167 Cal.App.2d 403 [334 P.2d 620] ; Estate of Hanley, 23 Cal.2d 120 [142 P.2d 423, 149 A.L.R. 1250] ; Abelleira v. District Court of Appeal, 17 Cal.2d 280 [109 P.2d 942, 132 A.L.R. 715].)

The motion to quash is denied. The demurrer is overruled. The motion for an order that ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍the question as to the date of entry of the judgment be tried by jury is denied.

Let a peremptory writ of prohibition issue, restraining respondent from taking any steps in the matter other than to dismiss the appeal.

Tobriner, Acting P. J., and Coakley, J. pro tem., * concurred.

A petition for a rehearing was denied March 17, 1961, and the petition of the real party in interest for a hearing by the Supreme Court was denied April 26, 1961.

Notes

Assigned by Chairman of Judicial Council.