Hartfield v. Alderete

[733]

SHAW, J.

Plaintiff, who is respondent, moves to dismiss the appeal upon the ground that notice thereof and request for a transcript was not filed within ten days after notice to the defendant of the entry of judgment. The appeal was taken under the alternative method. No notice of the entry of judgment was served upon defendant. After the entry of judgment defendant, as shown by the certificate of the clerk, prior to taking any steps to appeal therefrom, filed a bond the purpose of which was to stay execution of the judgment; and respondent contends that actual notice of the entry of judgment must be deemed implied from the filing of such stay-bond. The judgment was entered on July 2, 1914, and the notice of appeal was filed July 27, 1914. Section 941b of the Code of Civil Procedure, provides that such notice of appeal “may be filed at any time after the rendition of the judgment, order or decree, but the same must be filed within sixty days after notice of entry of said judgment, order or decree has been served upon the attorneys of record appearing in said cause or proceeding, provided however, that if no notice of entry of judgment be given the notice must, nevertheless, be filed, under any circumstances, not later than six months after the entry of the judgment, order or decree. ’ ’ Since no notice of the entry of judgment was served upon the attorneys of record for the defendant, the sixty days within which the appeal must be taken, where such service is had, did not begin to run, and the appeal having been taken prior to the giving of such notice and within six months after the entry of judgment, it follows that the appeal was taken within the time prescribed therefor. It is the service of the notice which starts the sixty days to running, and not the fact that defendant may have had actual notice of the entry of judgment. In discussing a like question in the case of

Title Insurance & Trust Co.

v.

California Development Co.,

168 Cal. 397, [143 Pac. 725], it is said: “But the sixty days for taking an appeal, under section 941b, runs from and after ‘notice of entry . . . has been served upon the attorneys of record . . .’ This implies, as is intimated in

Estate of Keating,