Hartfield v. Alderete

CONREY, P. J.

A motion to dismiss the appeal in this case was denied by order of this court entered November 11, 1914, 25 Cal. App. 732, [145 Pac. 146]. Respondent now further insists that the appeal should have been dismissed and that this court has no jurisdiction other than to enter a dismissal.

The order of November 11, 1914, being now final, is the law of the case on the points involved in the motion. The motion to dismiss was based upon the ground that notice of appeal and request for a transcript was not filed within ten days after notice to the defendant of the entry of the judgment. We think that the order denying said motion to dismiss was correctly made, since there was nothing in the record showing that the defendant ever had notice of entry of judgment, or ever waived notice of entry of judgment by any act done by him prior to filing his notice of appeal. The document upon which respondent relied as showing actual notice was a paper not capable of being considered as part of the record, and the filing of that paper did not constitute a waiver of the notice of entry of judgment referred to in section 953a of the Code of Civil Procedure.

While the order denying the motion to dismiss was, therefore, a correct order in this case, the opinion of this court contained one statement which it seems should be modified. Referring to section 953a, we said: “The notice of entry of the judgment contemplated by this section, while not so stated must, nevertheless, under section 1010 of the Code of Civil Procedure, be a written notice.” In

Estate of

Keating, 158 Cal. 109, at page 114, [110 Pac. 109, at page 111], the supreme court said concerning the same section, 953a: “The proposition that a written notice of the entry of the order is necessary to start running the time for filing the notice to the clerk by the appellant is not sustained, as we understand the authorities. ’ ’ The court then proceeds to a comparison between sections 953a and 941b and holds that, although the notice (of entry of judgment) under section 941b is intended to be necessarily a notice in writing, the words used in section 953a with reference to notice of entry of judgment are such, as to that

[606]

section, that “actual notice