Ferguson v. Fonner

CASHIN, J.

An appeal from a judgment entered against appellant Fonner in an action to recover a debt.

Respondent moved to dismiss" the appeal on the ground that the notice of appeal was not filed within the time prescribed by statute.

The judgment appealed from was entered on June 12, 1925, and on June 15, 1925, a notice of its entry was served on appellant. On June 25, 1925, a notice of intention to move for a new trial was filed, the notice stating that the motion would be presented on the minutes of the court and by affidavits. The motion was not presented until August 24, 1925, on which date it was denied for lack of jurisdiction, and the notice of appeal was filed on the same day. Respondent contends that no steps having been taken to bring the motion to a hearing within sixty days after the! service of the notice of entry of judgment there was no proceeding for a new trial pending within the provisions of section 939 of the Code of Civil Procedure, which would extend the time for an appeal from the judgment, and that the notice of appeal was filed too late.

As held in the matter of the

Estate of Bergland,

177 Cal. 227 [170 Pac. 400], the filing of a notice of intention to move for a new trial in time is the commencement of a new proceeding, which remains pending until disposed of by the court or by operation of law. The facts of the present case were similar to those of the case cited, and the notice of appeal having been filed within thirty days after the termination by operation of law of the proceeding for a new trial, the motion to dismiss the appeal should be denied.

A promissory note for $2,296.18, payable to respondent thirty days after date, was executed by appellant and James W. Gough on April 26, 1917. Payments were made thereon aggregating the sum of $662.80, the last payment being made on October 23, 1922. The complaint, which was filed on March 19, 1924, alleged that appellant on

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various dates before and after May 21, 1921, acknowledged his indebtedness on the note and promised to pay the same. These allegations were denied by appellant, who also pleaded by his demurrer and answer' to the complaint as a bar to the action the provisions of subdivision 1 of section 337 of the Code of Civil Procedure.