Aregood v. Traeger

THOMPSON (IRA F.), J.

This is a motion to dismiss an appeal on the ground that the notice of appeal was not filed within the time required by section 939 of the Code of Civil Procedure. Judgment was entered on August 13, 1926. Notice of intention to move and motion for a new trial were filed on October 1, 1926, and an order denying the motion was entered in the minutes on January 21, 1928. Notice of appeal was not filed until July 6, 1928. Prefacing the more general discussion and to avoid possible eon-

[228]

fusion it should be added that no notice of entry of judgment appears to have been filed, hence under the opinion in

Deacon

v.

Deacon,

201 Cal. 190 [255 Pac. 798], the power of the court to pass upon the motion for a new trial had not expired at the time of the entry of the order denying it on January 21, 1928. No notice of this latter ruling was served upon defendant.

The appellant contends that where a motion for a new trial is pending the time within which an appeal may be taken does not expire until “ten days after notice of decision denying said motion, or of other termination thereof.” He bases this argument upon his assertion that section 953a of the Code of Civil Procedure from which we have just quoted provides an alternative method of appeal and places great reliance upon a sentence found in

Deacon

v.

Deacon, supra,

as follows: “The time within which the motion for new trial must be passed upon would not have expired within the sixty-day period provided by section 660 of the Code of Civil Procedure, since "no notice of the entry of judgment had been given as provided in said section, and the notice of appeal herein would therefore have been in time,

since the same was served and filed within the period after the determination thereof, provided in section 953a of the Code of Civil Procedure.”