Kraft v. Briggs

CRAIL, P. J.

This case comes before us on the motion of the plaintiff to dismiss the appeal upon the ground that the appeal was not taken within the time prescribed by section 939 of the Code of Civil Procedure. In the trial court a judgment was entered for plaintiff, and in due course the defendant moved for a new trial. The ruling on this motion was delayed until, on February 19, 1936, the motion was denied by operation of law. After the time had expired within which the trial court had jurisdiction to grant a motion for new trial, the court made such a purported order and later made the order

nunc pro tunc

as of a date prior to February 19, 1936. Both of these orders were mere nullities.

(Kraft

v.

Lampton,

13 Cal. App. (2d) 596 [57 Pac. (2d) 171].)

The time within which to take an appeal terminated thirty days after February 19, 1936

(Lancel

v.

Postlethwaite,

172 Cal. 326 [156 Pac. 486];

Kocher

v.

Fidelity & Deposit Co.,

137 Cal. App. 474, at 476 [30 Pac. (2d) 535]), and the defendant did not take his appeal until July 3, 1936. In resisting the motion to dismiss the appeal the defendant contends that the proceedings on the motion for new trial did not terminate until the Supreme Court of California denied a hearing in

Kraft

v.

Lampton, supra,

and assumes that the orders purporting to grant a new trial were valid until such time. The orders were void from the beginning, mere nullities, and cannot be the basis for, nor evidence of, any right whatever.

(Forbes

v.

Hyde,

31 Cal. 342;