King v. Wilson

WHITE, P. J.

Respondents moved to dismiss the within appeal on the ground that the notice of appeal was not filed within the time required by rules 2 and 3 of Rules on Appeal. At the initial hearing of the motion appellant appeared in person and stated that she was without counsel, whereupon this court ordered the matter continued that appellant might be represented by counsel. Thereafter appellant’s present counsel, Mr. J errell Babb, filed an answer to the notice of motion,

[243]

as well as affidavits in

opposition;

counteraffidavits were filed, and the matter was argued and submitted.

The judgment was entered April 3, 1950. Notice of entry of judgment was filed April 10, bearing an acknowledgment of service as of April 10. Notice of intention to move for a new trial was filed on April 21 and denied on May 16. The notice of appeal was filed June 19, 1950. From a supplementary certificate of the clerk of the superior court it appears that although the court orally denied the motion for new trial on May 16, the order was ‘ ‘ entered on the Minutes of said Superior Court on the 22 day of May, 1950.”

Rule 2 of Rules on Appeal provides that the notice of appeal shall be filed within 60 days from the date of entry of judgment unless the time is extended as provided in rule 3. Subdivision (a) of rule 3 provides that when a

valid

notice of intention to move for a new trial is served and filed within 60 days after entry of judgment, if the motion is denied the time for filing the notice of appeal is extended until 30 days after denial of the motion by order of court or by operation of law. It is settled that the 30-day extended period does not begin to run until entry of the order of denial in the formal minutes

(Jablon

v.

Henneberger,

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

Grande