French v. MacNider

THE COURT.

Judgment herein was entered on March 13, 1915. It does not appear that any written notice of entry of that judgment was served upon the defendant. Nevertheless he did, on April 6, 1915, file a notice of appeal. On June 22, 1915, the respondent served and filed notice to dismiss the appeal on the ground that appellant has failed to file any transcript on appeal within the time prescribed by law and the rules of this court.

That the transcript has not been filed or any request made therefor is admitted. The appellant’s one contention in response to the motion is that, since a written notice of entry of judgment was not served upon him, the time has not commenced to run against him for filing his notice to the clerk requesting a transcript, as provided by section 953a of the Code of Civil Procedure; and therefore that the absence from the record on appeal of the documents required under that section does not furnish a sufficient ground for the dismissal of his appeal at this present time.

[68]

It seems to us that when the losing party has filed a notice of appeal the fact of actual notice to him is established by his own act. The decisions which hold that under section 941b of the Code of Civil Procedure, the notice therein mentioned must be in writing and that actual notice is not sufficient to set the time running for the purposes stated in that section, are not applicable to the provisions of section 953a.

(Fiske

v.

Gosbey,

168 Cal. 334, [143 Pac. 611].)

The motion of respondent is granted and the appeal is dismissed.