Rosslow v. Janssen

TYLER, P. J.

Motion to dismiss appeal. From the record it appears that on August 3, 1933', a jury rendered a verdict in the above-entitled action in favor of plaintiff and against the defendant in the sum of $8,000 and costs. The action was one brought under the provisions of section 29 (b) of the Workmen’s Compensation Act for damages for personal injuries and for attorneys’ fees as provided for under the act. Entry of judgment upon the verdict was stayed by the trial court pending its disposition of defendant’s motion for judgment notwithstanding the verdict. Thereafter, on August 14, 1933, defendant served and filed his notice of intention to move for a new trial. On September 11,

[469]

1933, the trial court denied defendant’s motion for judgment notwithstanding the verdict and, acting under section 29 (b) of the act above referred to, granted plaintiff the sum of $1,000 attorneys’ fees in addition to the amount of the verdict. A ten .days’ stay of execution was ordered until after the determination of defendant’s motion for a new trial. On the following day, September 12, 1933, the clerk entered judgment for $8,000, together with the sum of $496.25 as costs, in accordance with the verdict, but not in conformity with the order of September 11, 1933, as he failed to include in the judgment the amount of attorneys’ fees awarded plaintiff. On October 5, 1933, the court, in order to have the judgment speak the truth, decreed that the proper order be entered

nunc pro tunc

as of September 12, 1933, so as to include in the judgment the amount allowed as attorneys’ fees. This order was made to correct the clerical misprision of the clerk. Thereafter, on September 19, 1933, defendant served and filed a second notice of intention to move for a new trial, alleging therein the same grounds he had previously enumerated in his first notice. On October 13, 1933', no notice of entry of judgment having been served on defendant by plaintiff, the original motion for a new trial filed August 14, 1933, was, by operation of law, denied under the provisions of section 660 of the Code of Civil Procedure. On November 18, 1933, the trial court formally acted on defendant’s second motion for a new trial and entered its order denying the same. Thereafter, on November 28, 1933, defendant filed a notice of appeal to this court. Respondent here contends, in support of his motion to dismiss, that the notice of appeal filed November 28, 1933, is ineffectual for the purpose of perfecting an appeal under sections 939 and 940' of the Code of Civil Procedure, for the reason that sixty days from the entry of the judgment lapsed November 13, 1933, judgment therein having been entered on September 12, 1933; that the time was not extended by reason of the pendency of a motion for a new trial as thirty days had likewise elapsed since the determination in the trial court of defendant’s proceeding upon motion for a new trial on November 13, 1933, said motion for a new trial having been filed on August 14, 1933, and, no action thereon having been taken by the court within sixty days as pro