Bley v. Board of Dental Examiners

California Court of Appeal Nov 4, 1929 No. Docket No. 3884.Published

Before: Thompson

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Holding. The court dismissed the appeal because the underlying issues had become moot due to a subsequent modification of the trial court's order, and because the notice of appeal was filed after the mandatory jurisdictional deadline.

Issues

Whether the issues presented by the appeal have become moot due to a modification of the trial court's order.
Whether the minute order from which the appeal was taken constitutes a final appealable judgment.
Whether the notice of appeal was filed within the mandatory statutory time limit.

Disposition. dismissed

Quotations verified verbatim against the opinion

“From the foregoing amendment to the former minute order it appears that the issues presented by the attempted appeal have become moot.”

“The statute limiting the time in which an appeal may be taken is jurisdictional and mandatory.”

“The respondent’s motion is granted and the appeal is hereby dismissed.”

THOMPSON (R. L.), J.

This is a motion to dismiss an appeal.

The respondent filed in the Superior Court of San Joaquin County a petition for a writ of prohibition asking that the appellant, Board of Dental Examiners of the State of California, be restrained from proceeding to investigate certain charges of alleged misconduct on the part of respondent in the practice of dentistry. Upon the filing of this petition a temporary restraining order was signed and issued together with an order to show cause why it should not be made permanent. To this petition a demurrer and answer were filed. Upon hearing the demurrer and order to show cause on the return day which had- been fixed, the court on November 22, 1928, made the following minute order: “The above entitled cause having been heretofore tried by the Court and submitted to the Court for consideration and decision, the Court this day made an order that a writ of prohibition issue as prayed for, and overruled the demurrer to the petition on file herein.”

Prom this order the appellant served and filed a notice of appeal “from the judgment . . .

made

and

entered

in said action on the 22nd day of November, 1928 ...” This notice of appeal was not filed until January 26, 1929. ' On January 29th the appellant served notice on the clerk to prepare a transcript of proceedings pursuant to section 953a of the Code of Civil Procedure, which was done. Prom this transcript it appears the case was never heard on its merits. Nor does the record contain any formal order for the issuing

[668]

of a writ of prohibition, nor any such writ or findings of facts. The foregoing minute order was therefore clearly inadvertently made. From the affidavit and certificate of the county clerk which were filed in support of the motion to dismiss this appeal, it appears that the trial court subsequently, on February 15, 1929, modified its former minute order in the following language: “The minute order made herein on November 22, 1928, was inadvertently made, and does not express the intention of the court, and is for that reason amended to read as follows: . . . the court this day made an order that a

Bley v. Board of Dental Examiners

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THOMPSON (R. L.), J.

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