Schisler v. Mitchell

GRIFFIN, P. J.

This is an action in which plaintiff, trustor of the property involved, sought to have the trustee’s sale set aside or, in the alternative, damages in the sum of

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$120,000. As alleged in the complaint and in a subsequent amended complaint, the plaintiff, on October 17, 1957, signed a promissory note in the amount of $55,000, which was secured by a deed of trust in favor of the moving defendant, hereafter referred to as defendant. This note provided that the plaintiff would pay the defendant $2,000 on May 1, 1958, and the balance in subsequent payments.

According to documents filed with this court plaintiff concedes these facts to be true. The plaintiff did not make the May 1, 1958, payment nor did he make any other payments or tender to the defendant. A notice of default and election to sell at trustee’s sale was filed on July 18, 1958. The sale date was set for November 18, 1958. This date was continued to December 12, 1958, to give the plaintiff additional time to cure his default. On December 12, 1958, the plaintiff was still in default and the trustee sold the property to the defendant, the beneficiary under the deed of trust, for the balance due, $60,522.79.

On December 29, 1958, the plaintiff filed his complaint and the defendant’s demurrer thereto was sustained with leave to amend on February 6, 1959. Plaintiff filed his first amended complaint on March 9,1959, and defendant’s demurrer thereto was sustained without granting leave to amend on June 2, 1959. On June 11, 1959, judgment was entered and a notice of entry of judgment was served on plaintiff and filed on June 15, 1959. This judgment provides in pertinent part:

“Now, therefore, it is ordered, adjudged and decreed that the plaintiff take nothing by this action and that said defendant have and recover her costs herein taxed at $12.50.”

More than 60 days after entry of judgment, on August 17, 1959, plaintiff filed his notice of appeal to this court. As of August 18, 1959, plaintiff had not filed a notice to prepare transcript or designating record on appeal.

The defendant seeks dismissal of the appeal, contending that the appeal was not taken within 60 days from the date of entry of the judgment as is required by rule 2, subdivision (a) of the Rules on Appeal. Plaintiff contends that the judgment herein entered was not a “judgment of dismissal” such as is necessary to finally dispose of an action wherein a demurrer is sustained without leave to amend; that plaintiff’s notice of appeal was prematurely filed and will not be effective until a “judgment of dismissal” is entered by the superior court.