Bengel v. Traeger

[527]

CRAIG, J.

An action of the appellant against the respondent was tried in the Superior Court of Los Angeles County on October 25, 26, 29 and 30, 1928, on which last-mentioned date, the respondent’s counsel having moved for a nonsuit, the minutes of the clerk recite: “Defendants’ motion for nonsuit as to defendant Wm. I. Traeger in case No. 201623 is by the court granted.” A formal judgment of nonsuit was signed and filed in said court on January 2, 1929, and was entered in book 701, at page 224, of Judgments, on the day following. The plaintiff appealed on March 26, 1929, “from that certain judgment of nonsuit therein made, rendered and filed in the said superior court, and docketed and entered therein on January 3rd, 1929.” The respondent moved this court for a dismissal of the appeal, assigning as grounds therefor that it was not filed until after the judgment had become final, and that the time for appeal expired sixty days after October 30, 1928. The appellant contends that such time did not commence to run until the judgment was entered. Both parties rely upon section 581 of the Code of Civil Procedure, which reads as follows:

“An action may be dismissed, or a

judgment of nonsuit entered,

in the following cases: . . .

“5. By the court, upon motion of the defendant, when upon the trial the plaintiff fails to prove a sufficient case for the jury. . . .

“The dismissals mentioned in subdivisions three, four, and five of this section must be made by order of the court

entered upon the minutes

thereof

and are effective for all purposes when so entered;

but the clerk of the court must note such orders in his register of actions in the case.” (Italics ours.)

It is contended by the appellant that the “entry” of the fact that a nonsuit is granted must, for the purposes of appeal, be made in the same manner as is done in rendering any judgment upon the merits of the case effective for that purpose. Section 939 of the Code of Civil Procedure provides that: “An appeal may be taken from any judgment or order of a superior court from which an appeal lies under any provision of this code, or of any other code, or under any other statute,