Millsap v. Hooper

TRAYNOR, J.

Respondent moves to dismiss the appeals herein on the ground that the notice of appeal was filed too late.

Judgment for respondent was entered in the trial court on December 31, 1947. Notice of entry of judgment was mailed in Los Angeles on January 9, 1948, and filed on the same day. It was received at the office of counsel for the appellants on January 12th, and notice of intention to move for a new trial was filed on January 19th. The motion was denied by the trial court on March 9th, but the order of denial was not entered in the minutes until March 17th. Notice of appeal was filed on April 13th.

The effective date of an order of denial of a motion for new trial is the date of the minute entry, and the 30-day extension within which notice of appeal from the judgment may be filed under rule 3(a) does not begin to run until such entry.

(Jablon

v.

Henneberger,

33 Cal.2d 773 [205 P.2d 1];

Van Tiger

v.

Superior Court,

7 Cal.2d 377 [60 P.2d 851]; Brownell

v. Superior Court,

157 Cal. 703 [109 P. 91].) The date of the order of denial was therefore March 17th. That order was ineffective, however, because the motion had been denied by operation of law under section 660 of the Code of Civil Procedure before the date of the minute entry.

(Lancel

[194]

v.

Postlethwait,

172 Cal. 326 [156 P. 486]; see

Mellin

v.

Trousdell,

33 Cal.2d 858 [205 P.2d 1036].) The 30-day period of extension must therefore be calculated from the date of denial of the motion by operation of law, and if notice of appeal was filed after the expiration of that period, the appeal must be dismissed.