Costa v. Regents of University of California

DOOLING, J.

Respondents move to dismiss the appeal. Two separate questions are involved which for clarity of treatment must be considered separately.

The Motion op Respondents Carter and Emerson

These respondents during the course of trial made a motion for nonsuit which was granted by the court, the order granting their motion being entered in the minutes of the court on June 28, 1949, and reading so far as material here:

“Thereupon counsel for defendants . . . made a motion for a nonsuit, which said motion the court granted as to William E. Carter and Anastasia Emerson. ...”

Thereafter the trial proceeded as to the other defendants and after its conclusion a formal judgment of nonsuit as to defendants Emerson and Carter was signed by the trial judge and entered on August 19, 1949. Plaintiff made a motion for new trial which was ordered “dismissed because of defective notice” on October 6, 1949. Notice of appeal was filed on October 14, 1949.

It is clear that if the minute order of June 28, 1949, granting the motion for nonsuit was the appealable order the notice of appeal was filed too late. (Rules on Appeal, rule 2(a) and (b).)

The notice of motion for new trial was filed on September 3, 1949. This was more than^ 60 days after the entry of the minute order granting the motion for nonsuit and hence could not operate to extend the time for appealing from that order (Rules on Appeal, rule 3(a)), if that is the appealable order.

Under the long established rule the minute order granting a motion for nonsuit was the order from which the appeal must be taken.

(Nicholson

v.

Henderson,

25 Cal.2d 375, 378 [153 P.2d 945];

McColgan

v.

Jones, Hubbard, etc., Inc.,

11 Cal.2d 243, 245-246 [78 P.2d 1010].) This was not always the rule

(Kimple

v.

Conway,

69 Cal. 71 [10 P. 189]), but in 1897 section 581, Code of Civil Procedure, dealing with dismissals and nonsuits was amended to provide: