Knudson v. Superior Court

LAZAR, J. pro tem.

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Petition for writ of mandate to require the appellate department of the superior court to hear and rule upon certain appeals by petitioner which had been dismissed upon motion made upon the ground of lack of jurisdiction.

Facts

The petition arises from litigation in the Municipal Court of the San Diego Judicial District, Bandy v. Knudson Mfg. Co., No. 126960. In that ease the date of trial had been set and noticed. Petitioner’s counsel made efforts to have the trial delayed which were unsuccessful. The trial was held in the absence of petitioner and his counsel and resulted in judgments in favor of the plaintiff and of Great American Insurance Company, intervener and real party in interest in this proceeding. Two several judgments were entered, one on May

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14, the other on May 16, 1968. Notices were mailed respectively on May 15 and May 24.

On June 11 or 12 petitioner noticed motions in the trial court for a new trial, and for vacation of the judgments upon the grounds of “mistake, inadvertence and excusable neglect.” The motions were heard June 14.

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No order was made on the motion for new trial (which petitioner concedes was not timely filed), but the motion to vacate was denied as to both judgments by written order dated June 27. The record before us reflects no earlier order. Petitioner on July 1, filed a notice of appeal from the judgments and from the order denying the motion to vacate the judgments. Real party in interest moved the appellate department of the superior court to dismiss the “appeal” for lack of jurisdiction because it was not timely filed. The motion to dismiss was granted.

Discussion

In order to determine the correctness of respondent’s action dismissing petitioner’s appeal it is necessary to consider in part the language of rules 122 and 123, California Rules of Court, as follows:

' ‘ Except as otherwise specially provided by law, a notice of appeal shall be filed within 30 days after . . . entry of judgment . . . unless the time is extended as provided in rule 123.” (Rule 122(a).)