Kientz v. Harris

VAN DYKE, P. J.

Victor Vincent Kientz, as plaintiff in the trial court, filed an action against Arthur 0 ’Dell Harris, wherein he sought damages for the alleged wrongful death of Ruth Evelyn Kientz. On November 17, 1952, a judgment was entered in the action that plaintiff recover the sum of $25,000. Notice of entry of judgment was, after service, filed on November 22, 1952. It was received by counsel for the appellant on November 22d. Notice of intention to move for a new trial was filed on behalf of defendant, appellant here. It was stamped as having been filed December 5th. It had actually been received at the office of the clerk on December 1st. That official, noting that no fee had been forwarded with the notice and being, as he states in his affidavit filed with this court, in doubt as to his legal right to stamp the paper as filed on that date without payment of the filing fee, did not stamp the notice as filed, but immediately mailed to counsel for appellant his invoice acknowledging receipt of the notice and requesting the filing fee. On December 5th the clerk received from counsel for the appellant, again through the mail, a cheek for the fee and on that day stamped the notice as filed. Section 659 of the Code of Civil Procedure, so far as material here, provides that a party intending to move for a new trial must within 10 days after receiving written notice of the entry of judgment “file with the clerk” and serve a notice of his intention to so move. The section further provides that the specified time shall not be extended by order or stipulation. It is to be noted that if the notice of

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intention, be considered as filed when received by the clerk on December 1st the filing was within time, but if considered as filed when, after receipt of demanded fees, the clerk stamped it as being filed the filing was too late and the court had no jurisdiction to pass upon the motion. (20 Cal.Jur. “New Trial,” §§ 109, 110.) A notice of appeal must be filed within 60 days from the date of entry of judgment unless the time is extended by the filing of a valid notice of intention of moving for a new trial: (Rules on Appeal, 2 and 3.) A notice of intention to move for a new trial which is not served and filed within the time specified in section 659 of the Code of Civil Procedure is not such a valid notice of intention as is required by rule 3 (2) Rules on Appeal and therefore does not serve to extend the time within which a notice of appeal must be filed.