Nagelmann v. McIntyre

WHITE, J.

Motion to dismiss appeal. Plaintiffs brought this action to recover damages growing out of an automobile

[622]

accident in which it was claimed defendants were guilty of negligence. As to defendant McIntyre, a motion for change of venue to the Superior Court of Fresno County was granted, while the defendant Eobert I. Wood, a nonresident of this state, was served by mail pursuant to the provisions of section 404 of the Motor Vehicle Code as adopted in 1935. Defendant Wood’s default was duly entered, and thereafter the court rendered judgment against him in the sum of $8,000, which judgment was entered October 14, 1936. On November 9, 1936, defendant Wood moved the court to vacate the default entered against him and to set aside the judgment entered pursuant thereto, which said motion was by the court denied on January 11, 1937. Notice of entry of the judgment was served and filed February 1, 1937. Defendant Wood filed his notice of appeal on January 20, 1937, which was more than sixty days after the entry of judgment, but within sixty days after the entry of the order denying his motion to vacate the same judgment.

Section 939 of the Code of Civil Procedure provides that an appeal, to be timely, must be taken within sixty days after entry of the judgment or order which it is sought to have reviewed. In

Lawson

v.

Guild,

215 Cal. 378, at page 380 [10 Pac. (2d) 459], the Supreme Court says: “The statute limiting the time in which an appeal may be taken is jurisdictional and mandatory. If the appeal is not taken within the time allowed by law, an appellate court has no power to entertain it.” (Citing

Bley

v.

Board of Dental Examiners,

101 Cal. App. 666, 669 [282 Pac. 19].) In the case of

Lawson

v.

Guild, supra,