Palomar Refining Co. v. Prentice

BARNARD, P. J.

This is a motion to dismiss the appeal on the ground that it was not taken within sixty days after the entry of the order appealed from.

The action was one to recover $361.02 for merchandise sold and delivered. The appellant moved for a change of venue to Los Angeles County on the ground that he resided there and that the goods had been delivered pursuant to a contract, “the greater portion of which” was to be performed in that county. On October 31, 1940, the court entered its order denying this motion. Apparently, a default judgment was thereafter entered against the appellant as the record shows

[573]

that the court, under date of February 10, 1941, entered an order granting appellant’s motion “to vacate default, set aside judgment, and recall execution.” Thereupon, the appellant filed an answer to the complaint and thereafter and on March 13, 1941, he served and filed a notice of appeal from the order of October 31, 1940, refusing to change the place of trial of said action.

Notice of the entry of the order of October 31, 1940. was mailed by the respondent to the appellant but at an erroneous address and it is conceded that this notice was never received by the appellant.

Notice of this appeal was not filed until some 133 days after the entry of the order in question, and it follows that the appeal was not taken within the time permitted by the statute. (Sec. 939, Code Civ. Proc.) It has been frequently held that notice of the entry of a judgment or order is not required in order to start the running of the time within which an appeal may be taken.

(Lawson

v.

Guild,

215 Cal. 378 [10 Pac. (2d) 459] ;

Cook

v.

Cook,

208 Cal. 501 [282 Pac. 385] ;

Schainman

v.