Cowee v. Marsh

THE COURT.

A hearing was granted in this ease because at the time the.order of transfer was made there was pending in this court, and undetermined, the case of

Goetz

v.

Superior Court,

L. A. 24768 which involved a similar problem. The appeal in that case has since been determined and the judgment therein has become final. (49 Cal.2d 784 [322 P.2d 217].) The decision of the District Court of Appeal of the Third Appellate District is in conformity with the opinion and decision of this court in the Goetz case. The opinion of the District Court of Appeal, authored by Warne, Justice pro tempore, and concurred in by Presiding Justice Van Dyke and Justice Schottky is adopted as the opinion of this court. It is as follows:

“This is a motion to dismiss an appeal from the judgment. The sole question is whether the receipt of a notice of entry of judgment prepared and filed by the clerk of the court started the running of the 10-day period of time for the filing and serving [of notice] of intention to move for a new trial allowed by the provisions of section 659 of the Code of Civil Procedure.

“Judgment was entered on May 2, 1957. No notice of entry of judgment was served by the prevailing party. However, the record shows that notice in writing of entry of judgment was given on the 9th day of May, 1957, by the clerk of the Superior Court of Butte County, by depositing copies of said written notice in the United States mail addressed to counsel for the respective parties at their respective

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addresses. Counsel for appellant have their offices in Chico, Butte County, California, approximately 25 miles from the county seat of Butte County. Notice of entry of judgment was received by them on May 10, 1957.

“On June 11, 1957, 32 days after receipt by counsel for appellant of the clerk’s notice of entry of judgment, appellant filed notice of intention to move for a new trial. Notice of the motion was served on counsel for respondents the following day.

“Appellant’s motion for a new trial was heard over the objections of respondents and was denied on June 28, 1957. Notice of appeal was filed on July 25, 1957, the 84th day after the entry of judgment and the 27th day after denial of appellant’s motion for a new trial.