207 P. 1036 | Cal. Ct. App. | 1922
In this action for the restitution of leased premises and for damages alleged to have been sustained by reason of defendant's breach of certain covenants, plaintiff recovered judgment in the absence of defendant from the trial, and the latter now appeals from the judgment and likewise from an order denying his motion to set it aside. He also appeals from an order sustaining an objection to hearing his motion for a new trial and his motion for a rehearing of his motion to set aside the judgment.
The action was commenced October 14, 1920. Defendant, appearing by an attorney who has since been superseded by present counsel, filed an answer and likewise a cross-complaint. In due time plaintiff answered the cross-complaint. On October 29, 1920, the case being then at issue, the court, on motion of plaintiff's counsel, set the cause for trial on December 1, 1920. On October 31, 1920, defendant's counsel received notice of the setting of the case for trial. Notwithstanding the receipt of such notice by defendant's counsel, *3 neither he nor his client appeared in court when the case came on for trial December 1, 1920. Plaintiff, therefore, in the absence of defendant and his counsel, put in his evidence, and a judgment in his favor was rendered and entered December 10, 1920. Shortly before the opening of court on the morning of the day for which the case was set for trial, defendant's counsel called plaintiff's counsel on the telephone and asked for a short continuance of the case on account of his client's absence. Plaintiff's counsel refused to accede to the request, and defendant's counsel concluded that it was useless for him to appear in court without his client.
On January 22, 1921, defendant, who in the meantime had substituted his present counsel for his former attorney, served and filed a notice that he would move the court to set aside the judgment on the ground that it had been taken against him through inadvertence, surprise, and excusable neglect. He accompanied his notice with an affidavit made by himself, wherein, after admitting that his former attorney had received due notice that the cause was set for trial December 1, 1920, he deposed that he himself knew nothing about the trial or of the date set therefor, and that if his attorney had notified him that the case had been set for trial he would have been present with his witnesses. Counter-affidavits were filed by plaintiff, as well as additional affidavits on behalf of defendant. In one of the counter-affidavits, an affidavit made by defendant's former counsel, it is positively affirmed by the affiant that he did notify his client, the defendant here, that the case was set for trial on December 1, 1920, but that defendant failed to keep his promise to appear at the trial and bring his witnesses with him; and that the only reason why affiant did not appear was that he could not try the case without the presence of his client and his witnesses.
[1] The affidavits are quite voluminous, but from what we have set forth it sufficiently appears that there was a substantial conflict in the evidence upon which the court denied defendant's motion to set aside the judgment. So that, even if the appeal from the order denying defendant's motion to vacate the judgment had been taken in time — a matter which we presently shall consider — it would be our duty to affirm the order for the reason that, there *4
being a substantial conflict in the affidavits, the action of the trial court in determining whom to believe is conclusive on the appeal to this court. The statements in the affidavits that favor respondent must control. (Patterson v. Keeney,
On February 18, 1921, the court denied defendant's motion to set aside the judgment. Thereafter, namely, on February 25, 1921, defendant filed a notice that he would move the court to grant him a rehearing of his motion to set aside the judgment. At the same time he filed a notice of his intention to move for a new trial. The record before us is silent as to any service upon plaintiff of either of the last-mentioned notices. Plaintiff objected to any hearing of defendant's motion for a rehearing of his application to set aside the judgment. Plaintiff likewise objected to any hearing of defendant's motion for a new trial. On March 10, 1921, the trial court sustained plaintiff's objection to hearing defendant's motion for new trial and likewise sustained the objection to hearing defendant's motion for a rehearing of his application to vacate the judgment. The notice of appeal was filed April 25, 1921.
[2] The appeal from the order denying defendant's motion to vacate the judgment was taken too late. That order was entered in the minutes of the court on February 18, 1921. The notice of appeal was filed April 25, 1921, or sixty-six days after the entry of the order. An appeal from such an order must be taken within sixty days after its entry in the minutes. (Code Civ. Proc., sec. 939.)
[3] The statutory time for taking an appeal is jurisdictional and mandatory; and where an appellant has made no attempt to appeal until after the time prescribed by the statute, the court is without jurisdiction. (Estate of Brewer,
[4] Moreover, the transcript before us has not been authenticated by the judge's certificate. The record here consists of a clerk's typewritten transcript containing the judgment-roll, together with certain papers and records purporting to have been used on the proceedings had subsequent to the entry of the judgment. This transcript is certified by the clerk, but not by the judge. In Barnabee v. Hunstock,
[5] The order refusing to hear defendant's application for a rehearing of his motion to vacate the judgment is not appealable, and therefore must be dismissed. The first order, that made on defendant's original motion to set aside the judgment, was an appealable order. An appeal will not lie from an order refusing to set aside a former appealable order, made regularly and advisedly. Such subsequent order is the mere negative action of the court declining to disturb its first decision. It is the first decision, and not the refusal to alter it, which is the proper subject of complaint. (Henly v.Hastings,
[6] In sustaining the objection to hearing defendant's motion for a new trial the court did not err. There is some doubt whether a new trial is the proper remedy when the defendant has not appeared at the trial. (See McKinley v. Tuttle,
[7] The appeal from the judgment was taken more than sixty days after its entry. The notice of intention to move for a new trial was not filed until seventy-seven days after the entry of the judgment, with the result that no proceeding on motion for new trial had been inaugurated or was pending at the expiration of the sixty days after entry of the judgment within which an appeal might be taken from the judgment in the absence of any pending proceeding for a new trial. The right of appeal from the judgment was, therefore, lost. (Ransome-Crummey Co. v.Beggs,
The appeal from the judgment is dismissed; the appeal from the order denying defendant's motion to set aside the judgment is dismissed; the appeal from the order refusing to hear defendant's motion for a rehearing of the order denying his motion to vacate the judgment is dismissed; the order sustaining plaintiff's objection to a hearing of defendant's motion for a new trial is affirmed.
Works, J., and Craig, J., concurred.