Carver v. Platt

California Court of Appeal Mar 22, 1960 No. Civ. 23906Published

Before: Vallee

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Holding. The court held that an appeal from an order denying a motion to vacate a judgment must be filed within the statutory 60-day period, and that a trial court lacks jurisdiction to grant a motion for relief under Code of Civil Procedure section 473 if the application is made after the six-month statutory deadline.

Issues

Whether the appeal from the order denying the motion to vacate was timely filed.
Whether the trial court had jurisdiction to grant a second motion for relief under section 473 filed after the six-month period expired.

Disposition. Appeal from July 24 order dismissed; August 26 order affirmed.

Quotations verified verbatim against the opinion

“Compliance with the requirement as to the time for taking an appeal is mandatory, and the court is without jurisdiction to consider one which has been taken subsequent to the expiration of the statutory period.”

“When application is not made within the six-month period the court is without jurisdiction to grant relief from a judgment taken through mistake.”

“Since the second motion for relief was made after the prescribed period had expired, the court was without jurisdiction to act.”

VALLÉE, J.

Appeals by plaintiff from an order denying a motion to vacate a judgment and from an order denying a motion for reconsideration of that order.

The action was for wrongful death. The cause was tried by a jury which returned a verdict for defendants. Judgment on the verdict was entered Januarj^ 30, 1958. No motion for a new trial was made. No appeal was taken from the judgment and it became final.

On July 18, 1958, plaintiff filed a notice of motion under section 473 of the Code of Civil Procedure for relief from the judgment, asserting it was entered by mistake. The mistake alleged was that the court had erred in instructing the jury on unavoidable accident, effect of accident alone, and imminent peril. It was averred that under

Butigan

Yellow Cab. Co.,

49 Cal.2d 652 [320 P.2d 500], it was prejudicial error to have instructed on unavoidable accident. In an affidavit of plaintiff filed in support of the motion it was stated that after judgment had been entered, her then attorney advised her that in his opinion “there would be no useful purpose to be served by filing a motion for a new trial, or by appealing the judgment to an Appellate Court, or by taking any further action in the matter, ’ ’ and in reliance on such advice she took no further action until May, 1958, when she consulted her present counsel, who advised her it appeared that error had been committed in the giving of the instructions to the jury. The motion was denied by minute order on Judy 24, 1958. The order was entered in the permanent minutes on July 28, 1958.

On August 6, 1958, plaintiff filed a notice of motion for reconsideration of the order of July 24. In support of this motion plaintiff filed an affidavit of her present counsel, a memorandum filed in support of the previous motion, and a partial reporter’s transcript of the proceedings on the trial of the action. This motion was denied by minute order on August 26, 1958.

The notice of appeal from both minute orders was filed September 30, 1958. The appeal from the order of July 24, 1958, was not timely and must be dismissed. The notice of appeal from that order was filed more than 60 days after the order was entered in the permanent minutes. No

[142]

Carver v. Platt

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