Freese v. Freese

McMURRAY, J. pro tem.

*

Respondent moves to dismiss this appeal upon the ground: “That said appeal was not taken within 60 days from the date of entry of the judgment, as is by law required, reference being had to the Certificate of the Clerk of the Superior Court of the State of California, in and for the County of Stanislaus, filed herein, which is made a part of this motion. Said motion will be further based

[868]

on

records and files of this action and said certificate of the clerk.”

The certificate of the clerk on file is in accordance with rule 42 of Rules on Appeal and reveals the following: The appeal is from a denial of a claim of exemption from execution after levy of a writ of execution issued against appellant for delinquent support and maintenance payments; that a “claim that said property was exempt from said execution was filed” by appellant and a counteraffidavit in opposition thereto was filed by respondent; that thereafter on April 6, 1955, a minute order was made denying appellant’s claim of exemption; that this order contained no express direction that a written order be prepared and entered. The certificate further reveals that on April 6, 1955, “Decision on Defendant’s Claim of Exemption” signed by the trial judge was served upon the attorneys for both parties; on June 6, 1955, “Order Denying Defendant’s Claim for Exemption” was “signed and entered” by the trial judge. “Notice of Appeal from Order Denying Defendant’s Claim of Exemption” was filed on August 5, 1955.

If the minute order of April 6, 1955, was appealable this appeal must be dismissed as not timely, but if the “signed and entered” order was the final judgment in this matter the appeal was timely.

Rule 2(a) of Rules on Appeal provides: “[Normal time] Except as otherwise specifically provided by law, notice of appeal shall be filed within 60 days from the date of entry of the judgment, unless the time is extended as provided in Rule 3.”

Rule 2(b) of Rules on Appeal states, so far as is here apposite: ‘ ‘ [What constitutes entry] For the purposes of this rule: (1) The date of entry of a judgment shall be the date of its entry in the judgment book. ...” This motion to dismiss is based solely upon this portion of the rule.