People v. Howard

California Court of Appeal May 31, 1935 No. Crim. 2738Published

Before: Fricke

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Holding. The court held that an appellate court will not entertain an appeal from an order denying a motion to set aside a judgment where the grounds for the motion could have been raised on an appeal from the original judgment. Furthermore, the right to make such motions is exhausted once the court has ruled on them.

Issues

Whether an appeal may be maintained from an order denying a motion to set aside a judgment when the grounds for the motion could have been raised on appeal from the original judgment.
Whether a trial court has jurisdiction to grant a motion to set aside a judgment when the grounds assigned are matters that could have been raised on appeal from the judgment.

Disposition. Appeal dismissed.

Quotations verified verbatim against the opinion

“the trial court is without jurisdiction to grant a motion to set aside a judgment where the grounds assigned are all matters which could be raised on an appeal from the judgment”

FRICKE, J.,

pro

tem.

On March 5, 1935, appellant, serving a sentence in the state prison following his conviction herein in March, 1931, of six charges of burglary following a prior conviction of a felony, sent to the Superior Court for Los Angeles County, in which he was last convicted, notices of motion and written motions to set aside the judgment, to correct- the minutes of the court and for a writ of attachment to secure appellant’s presence at the hearing of the motions, which were noticed for hearing on March 19, 1935. Accompanying such motions were notices of appeal, statements of grounds of appeal and demands for a phonographic reporter’s transcript of the proceedings on such motions, with the dates left blank and including the statement: ‘ ‘ This written notice and grounds of appeal is not to be dated and filed in the county clerk’s office, county of Los Angeles, State of California, until the date the foregoing motion be denied.” On March 19th the motions and application for writ of attachment- were denied by the court and the judge thereof directed the clerk to fill out the notices of appeal and ordered the necessary transcripts on appeal.

[285]

Since the notices of appeal from the order denying the motions were, on order of the trial judge, filled out and filed, it cannot be said, as claimed by respondent, that an appeal was not taken within the time prescribed by law. It is true, as stated in

Frey

Superior Court,

5 Cal. App. (2d) 534 [43 Pac. (2d) 342], that the clerk of the court was not required, under the duties of his office, to fill out and file the notices of appeal after the motions were denied; nor do we think that the court had any authority to order the clerk to perform such acts. But the fact remains that the notices of appeal and other papers necessary to effect an appeal were filled out and filed at the request of appellant, and this as effectually operated as the taking of an appeal as if the acts had been performed by appellant in person. There is, however, ample cause demanding a dismissal of the appeal.

People v. Howard

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FRICKE, J.,

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