Labarthe v. McRae

PETERS, P. J.- —

Respondent moves to dismiss the above-entitled appeal on the ground that the appeal was not taken within the time provided by law.

The pertinent dates are as follows:

Notice of entry of judgment deposited in the mail at Redwood City by respondent, properly addressed to appellants’ attorneys in San Francisco, the two places being about twenty-five miles apart...................May 13, 1939.

[736]

Notice of entry of judgment delivered at the office of appellants’ attorneys in San Francisco ...............................'...May 15, 1939.

(May 14, 1939, was a Sunday.)

Notice of intention to move for a new trial filed by appellants..........................May 25, 1939.

Motion for a new trial denied................July 11, 1939.

Notice of appeal filed.......................July 17, 1939.

Under the provisions of section 939 of the Code of Civil

Procedure, an appeal may be taken within sixty days from the entry of the judgment or order appealed from, but, if proceedings on motion for a new trial are properly pending, the time for appeal is extended until thirty days after entry of the order determining the motion for a new trial. Section 659 of the Code of Civil Procedure provides, in part, that the party intending to move for a new trial must file his notice of intention “within ten (10) days

after receiving written notice of the entry of the

judgment”. (Italics ours.) Part 2, title 14, chapter 5, of the Code of Civil Procedure is entitled “Notices, and Filing- and Service of Papers”, and embraces sections 1010 to 1019, inclusive. So far as pertinent here, section 1010 provides that “Notices and other papers may be served upon the party or attorney in the manner prescribed in this chapter,

when not otherwise provided by this code.”

(Italics ours.) Section 1012 permits service by mail, and section 1013 provides that service by mail “is complete at the time of the deposit” in the post office, “but if, within a given number of days after such service, a right may be exercised . . . the time within which such right may be exercised ... is extended one day, together with one day additional for every full one hundred miles distance between the place of deposit and the place of address ... ”.