Reber v. Superior Court

DUNIWAY, J.

Petition for a writ of mandate or prohibition to compel dismissal of an appeal from the municipal court or to prevent further proceedings therein. Because the appeal was filed too late, the petition must be granted.

Muller, the real party in interest, was plaintiff in the municipal court. According to the petition, judgment against him was entered on May 24,1956. On July 30, he filed a notice of motion for a new trial. This was 67 days after entry of judgment. The motion for a new trial was denied by operation of law (Code Civ. Proc., § 660) not later than September 28. On October 11, notice of appeal to the appellate department of respondent court was filed. Subsequently, that court denied a motion to dismiss the appeal.

[624]

As a return to the alternative writ, Muller has filed (1) a “motion to quash and dismiss the alternative writ,” which is in substance a demurrer to the legal sufficiency of the petition; (2) a demurrer to the petition, and (3) an answer to the petition. The answer admits that the record shows that the judgment was entered on May 24, but denies that it was so entered and alleges that it was not entered until ‘ ‘ sometime after May 28, 1956 and on or before July 25, 1956, and at a time very close to or on the 25th day of July, 1960

[sic]

itself, and entered just immediately preceding the filing of the Notice of Entry of Judgment on July 25, 1960 [sic].” It also alleges that notice of entry of judgment was served on July 24, 1956, and filed on July 25, 1956.

Muller has also filed a motion for an order that the question as to when the judgment was entered be tried by a jury (Code Civ. Proc., § 1090). We think there is no necessity for such a trial. No genuine factual issue is tendered by the answer. Muller himself brought the record before us in his petition for a writ of certiorari in

Muller

v.

Municipal Court,

176 Cal.App.2d 156 [1 Cal.Rptr. 207]. As is there clearly shown, judgment was in fact entered on May 24, by the clerk, following the verdict of the jury, pursuant to Code of Civil Procedure, section 664. (Pp. 158-160.) We also there held that the notice of entry of judgment was sufficient. (Pp. 160-161.) But we declined to pass upon the timeliness of the appeal. That question is now properly before us.