Foley v. Foley

[77]

THE COURT.

This is an appeal from an order granting a new trial in a divorce action on the issue of the property of the parties and its disposition only. An interlocutory decree in favor of cross-complainant, husband, on the ground of extreme cruelty was entered on April 15, 1955. Notice of entry of judgment, dated and mailed on April 15, 1955, was filed on April 18, 1955. Notice of motion of the wife for a new trial was filed and served by mail on April 22, 1955, but the filing fee was not paid until April 29. It is the position of the husband, appellant, that the late payment of the filing fee caused the motion for a new trial to be tardy so that the court had no jurisdiction to grant it and that the granting on the limited issues only was error prejudicial to appellant. We have found both contentions without merit.

It is true that the filing with the clerk of the notice of intention to move for a new trial within 10 days after receiving written notice of the entry of judgment is jurisdictional. (Code Civ. Proc., § 659;

Neale

v.

Morrow,

174 Cal. 49, 51 [161 P. 1165].) Appellant relies upon

Kientz

v.

Harris,

117 Cal.App.2d 787 [257 P.2d 41], for his contention that the payment of the filing fee within that period is also jurisdictional. In that case the notice was mailed to the clerk and received in time, but no filing fee was forwarded with it; the clerk did not stamp the notice as filed, but mailed back an invoice acknowledging receipt and requesting the filing fee. The fee was received after the statutory time had run and the notice was stamped as filed at that late date only. The court held that the provisions of the Government Code which provide for collection of all fees in civil cases by the county clerk in advance of the services to be performed by him (§§ 6100, 24350.5) are mandatory, that the clerk properly refused to file until he had received the fee and that the mailing to and receipt by the clerk without his filing could not be considered to comply with section 659,