Lynch v. Watson

FOX, J. pro tem.

Defendant contends that the plaintiff filed his notice of appeal from a judgment of dismissal too late and that therefore his appeal must be dismissed. This contention is correct.

[52]

Plaintiff, on August 9, 1940, filed an action against John S. Holmstrand, who, on September 5, 1940, filed his answer and cross-complaint. On October 7, 1940, plaintiff filed his answer to the cross-complaint. On July 7, 1942, Mr. Holmstrand died. On October 14, 1943, the administrator of his estate was substituted as defendant and cross-complainant. The case not having been brought to trial, the administrator, on November 10, 1943, pursuant to due notice, made a motion, supported by affidavits, to dismiss the action upon three grounds: (1) that plaintiff had failed to file or present any claim against the estate of Holmstrand as required by section 709, Probate Code; (2) that he had failed to prosecute said action with due or any diligence; and (3) that he had failed to file a nonresident cost bond as required by section 1030, Code of Civil Procedure. Plaintiff filed counteraffidavits. The motion to dismiss was granted, the minute order directing the “Attorney for the Defendant to prepare Judgment.” The formal judgment dismissing the action was signed and filed on November 16, 1943. Plaintiff, on December 22, 1943, made a purported motion for a new trial. It was denied on that date. On January 19, 1944, plaintiff filed his notice of appeal “from the judgment herein made on the 22 day of December, 1943.” There was, however, no

judgment

made in said case on December 22, 1943. The only thing that happened on that date was the denial of plaintiff’s purported motion for a new trial. This order, however, is not appealable (Code Civ. Proc., § 963;

Confar

v.

Whelan

(1935), 8 Cal.App.2d 101 [46 P.2d 991]; 20 Cal.Jur. § 139, p. 213).

If, however, we disregard the date stated in plaintiff’s notice of appeal and consider that the appeal was taken from the judgment dismissing the action, said notice of appeal was not filed within the time required by law. Under rule 2(a) of Rules on Appeal, “notice of appeal shall be filed within 60 days