Confar v. Whelan

California Court of Appeal Jun 26, 1935 No. Civ. 1194Published

Before: Harden

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Holding. The court held that a motion for a new trial based on issues of law, such as a demurrer, does not extend the statutory time for filing an appeal from a judgment. Because the appeal was not filed within sixty days of the judgment's entry, the court lacked jurisdiction to hear it.

Issues

Whether a motion for a new trial regarding questions of law extends the time to appeal from a judgment under section 939 of the Code of Civil Procedure.
Whether the court has jurisdiction to consider an appeal filed more than sixty days after the entry of judgment.

Disposition. Appeal dismissed.

Quotations verified verbatim against the opinion

“The device of moving for a new trial, under the circumstances existing here, cannot extend the time within which to appeal from the judgment beyond sixty days from the entry of the judgment.”

“The appeal not having been taken within that period, the court has no jurisdiction to consider the appeal on the merits.”

HARDEN, J.,

pro tem

This is an action against the district attorney o.f San Diego County and others for damages alleged to have been sustained by plaintiffs by reason of the unlawful arrest and detention of the minor child of plaintiffs. The American Bonding Company, a corporation, is joined as a defendant upon allegations that it is surety upon an official bond given by the district attorney for the faithful performance of his duties as such officer.

The demurrer of said bonding company to the complaint was sustained without leave to amend on December 3, 1934. A motion hj^ said company to strike passages of said complaint was presented on December 4, 1934, and a written order made and filed on December 18, 1934, granting said motion. Pursuant to the order sustaining the demurrer, judgment of dismissal of the action as against said company was entered December 5, 1934; notice whereof was given to plaintiffs’ counsel December 16, 1934. Notice of intention

[103]

to move for a “new trial” of the issues raised on the demurrer was given and filed December 21, 1934. A minute order denying said motion for new trial was entered February 11, 1935. Notice of appeal was filed by plaintiffs on March 4, 1935, from the order sustaining the demurrer, from the order granting the motion to strike, from the order denying the motion for “new trial”, and from the judgment.

Said bonding company now moves to dismiss the appeal upon the ground that the appeal was not taken within sixty days from the date of entry of the judgment, as prescribed by section 939, Code of Civil Procedure. Said section also provides that, in cases where proceedings upon motion for a new trial are pending, the time for appeal from the judgment shall not expire until thirty days after entiy in the trial court of the order determining such motion.

Appellants contend that the making and consideration of the motion for new trial operated to give them the additional thirty days within which to appeal from the judgment; and in support of their position rely upon

Quist

Michael,

Confar v. Whelan

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HARDEN, J.,

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