Supple v. Luckenbach

CURTIS, J.

Motion to dismiss appeal on the ground that the notice of appeal was given prior to the entry of judgment and, therefore, the appeal was prematurely taken. It is well settled in this state that an appeal from a judgment taken prior to the rendition of the judgment is prematurely taken and does not vest the appellate court with jurisdiction to entertain the attempted appeal.

(Aspegren & Co., Inc.,

v.

Sherman, Swan & Co.,

199 Cal. 532 [250 Pac. 400].)

In this action the trial court on January 13, 1938, filed a paper entitled, “Memorandum Decision and Order for Findings” in which he stated that judgment should be for the plaintiff, and directed plaintiff’s counsel to prepare and present appropriate findings of fact and conclusions of law in accordance with the view of the court as expressed in said memorandum of decision. Plaintiff prepared a draft of proposed findings of fact and conclusions of law, served the same upon the defendants’ counsel, and presented the same to the

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clerk of the court. After receiving a copy of the proposed findings, the attorney for the defendants met the trial judge, and stated to him that he had no objections to the findings as prepared by the attorney for the plaintiff. On March 24th, the clerk inadvertently filed said findings without the same having been signed by the trial judge. The trial judge was from a county outside of the county in which the action was tried, and on May 23d, under the impression that he had signed the findings, he signed a judgment in the action, and on the next day said purported judgment was filed with the clerk of the court. On June 9th, defendants filed a notice of appeal from said judgment. Thereafter the attorney for plaintiff discovered that the findings as proposed by him had not been signed by the judge before they were filed. He accordingly, through correspondence with the trial judge, had new findings of fact and conclusions of law signed by the judge, and filed on July 12th, in the exact language of the proposed findings, with the exception that the word “proposed” was not in the draft of the findings and conclusions of law which were signed by the judge. No appeal has been taken from this judgment, although the defendants’ attorney had knowledge that the proposed findings, which were inadvertently filed by the clerk, had not been signed by the trial judge, and that the plaintiff’s attorney and the trial judge were corresponding with each other with a view to having new findings signed by the judge, and a proper judgment rendered thereon. In fact, defendants’ attorney was solicited to join in these endeavors but declined to have any part therein. It is true that no notice of the entry of this second judgment was ever served upon defendants’ attorney. No such notice was required in order to start running the time in which he might appeal from said judgment. No advantage was taken of defendants’ attorney by reason of the failure to give him notice of the entry of said judgment, as he was put upon notice as a reasonable man that proper findings would probably be filed and a judgment thereon rendered. Had he used reasonable diligence, he could have ascertained by the examination of the record in the clerk’s office that new findings and a proper judgment had been filed in the office of said clerk.