Anderson v. Standard Lumber Co.

BURNETT, J.

Respondent has moved to dismiss the appeal upon the ground that no actual notice of appeal was ever given. The language adopted by appellant to effect his purpose is as follows: “You and each of you will please take notice that the plaintiff in the above-entitled action desires and intends to appeal to the District Court of Appeal of the State of California, Third Appellate District, from the judgment made and entered in said action,” etc. It is the contention of respondent that the foregoing is not equivalent to a notice that the plaintiff “does appeal,” but that it simply expresses a purpose or intention to appeal in the future. Respondent calls attention to various code sections, among them, section 941b of the Code of Civil Procedure, and the decisions of the supreme court in

Boling

v.

Alton, 162

Cal. 297 [122 Pac. 461], and

Wall

v.

Hunter,

186 Cal. 473 [199 Pac. 775]. Said section 941b provided: “Any person to whom the right of appeal from any judgment, order or decree of the Superior Courts of the state is granted, may appeal therefrom by filing with the clerk of the court in which the judgment, order or decree is rendered, a notice entitled in the cause .in which said judgment, order or decree was made, which said notice shall state that the person giving the same does thereby appeal to the Supreme Court or district court of appeal, as the case may be, from the judgment, order or decree, or some specific part thereof, ’ ’ etc. It is to be observed, however, that this section was repealed in 1921 (Stats. 1921, p. 194) before said notice was given herein, it being dated December, 1921, and section 940 of said code was amended so as to read: “An appeal is taken by filing with the clerk of the court in which the judgment or order appealed from is entered, a notice stating the appeal from the same, or some specific part thereof.” This repeal seems to have escaped the attention of counsel, and it may be important, since the statute does not now prescribe so

definitely

what the notice of appeal shall contain.

In the Boling ease,

supra,

the only notice was: “You will please take notice that the defendant in the above-entitled action, Thomas Alton