Sheta v. Grahm

FOX, Acting P. J.

This is a motion to dismiss the appeal on the ground that the notice of appeal was not filed within the time required by the Rules on Appeal in view of the provisions of rule 2(b) (2).

Plaintiff brought this action as an assignee of a Nevada corporation. Prior to filing their answer defendants made a motion to dismiss on the ground, inter alia, that the plaintiff had forfeited its powers, rights and privileges in this state because of nonpayment of its franchise tax. (Rev. & Tax. Code, §§ 23301, 23302.) In support of this motion, defendants submitted the affidavit of one of their attorneys in which he stated that at all times mentioned in the second amended complaint plaintiff’s assignor, Eldindia Corporation, was a Nevada corporation; that the right of said corporation to exercise corporate rights and privileges in the State of California was forfeited on September 1, 1950, for failure to pay taxes due to the Franchise Tax Board of the State of California, and that “said corporation has never since been and is not now reinstated or relieved from said forfeiture in California. ” The affiant attached a certificate of the Secretary of State of California in support of his averments. No counteraffidavit was filed.

On July 23, 1957, the trial court granted the motion to dismiss and directed the attorney for the defendants to prepare a formal order of dismissal. The signed “order dismissing defendants and judgment for their costs” was filed August 1, 1957, and entered August 14th. Notice of appeal was filed October 11, 1957.

It is respondents’ position that the time for appeal started to run on August 1, 1957, the date on which the formal order of dismissal was filed, and that since the notice of

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appeal was not filed until more than 60 days thereafter, it was too late, and the appeal must be dismissed.

Appellant contends, however, that the time for appeal did not start to run until the entry of judgment on August 14, and that since his notice of appeal was filed on October 11 he is in ample time.

Rule 2(b) (2), Rules on Appeal, reads: “The date of entry of an appealable order which is entered in the minutes shall be the date of its entry in the permanent minutes,