The judgment appealed from was entered August 28, 1942. A motion to vacate this judgment was overruled September 28, 1942. The motion to vacate had the effect of extending the time within which to take an appeal. Southern Pacific Co. v. Sartoris, 9 Cir., 27 F.2d 852, 853; Jones v. Thompson, 8 Cir., 128 F.2d 888, 889.
The appellant gave notice of appeal not only from the judgment of August 28, 1942, but from the action of the court in overruling his motion to vacate. In any event, the time within which the notice of appeal must have been filed was three months from September 28, 1942. The notice of appeal was filed in the office of the Clerk of the District Court on January 2, 1943. ' This was too late. Since the appeal was not filed within the time allowed by statute for the taking of such an appeal, we are without jurisdiction.
The appeal is dismissed.