Jackson v. Thompson

WHITE, J.

This is an appeal by plaintiff from an order

of the Superior Court of Santa Barbara County striking from the records and files of the action a “Notice and Request for Transcript” filed therein by such plaintiff in connection with his appeal from an order of dismissal made in said action.

There is no dispute concerning the factual situation with which we are here confronted. This action was instituted

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in the superior court, and during the month of May, 1939, was pending therein. On May 15, 1939, pursuant to motion theretofore duly made by defendants, and in the presence of counsel for all parties, the court orally announced from the bench its order granting said motion and pursuant thereto dismissing the action for lack of prosecution under the provisions of section 583 of the Code of Civil Procedure. The clerk thereupon entered such oral order, of the court in the court clerk’s “rough minutes”, but such order was not formally entered in the minutes of the court until approximately one week later than the date of its rendition. However, on May 16th, which was the day following the date upon which the oral order of dismissal was made, defendants’ counsel served upon plaintiff’s attorney a “Notice of Ruling”, evidently intended to be a notice of the entry of the order or judgment of dismissal. After receiving such notice, plaintiff’s attorney examined the minute book of the superior court and found that such order of dismissal had not been entered. It might here be noted that no other notice of entry of the order or judgment of dismissal was ever served upon plaintiff. On June 10, 1939, plaintiff filed in the superior court his “Notice of Appeal” from the order of dismissal and on the same day he also filed a “Notice and Request for Transcript”. It was this last-named document which was stricken from the files by the court, and which order forms the basis of this appeal.

Appellant contends that pursuant to the provisions of sections 953a and 953d of the Code of Civil Procedure his time to file a request for transcript did not commence to run until notice of the entry of the dismissal order had been served upon him; and that such notice could not legally be served upon him until the dismissal order made by the superior court had been formally entered in the minutes of the court. In this claim appellant must be upheld. The so-called “Notice of Ruling”, having been served on May 16th, one day after the oral ruling on the motion to dismiss, but several days prior to the formal entry of such order in the minutes of the court, was a nullity and of no legal effect.