Stout v. Farwell

CONREY, P. J.

By decision filed February 6, 1930 (103 Cal. App. 741 [285 Pac. 336, 286 Pac. 471]), the appeal in this case was dismissed, on the authority of another decision of same date in

Berg

v.

Traeger,

(Cal. App.) 285 Pac. 332. The ground of decision was that this court did not have jurisdiction of the appeal. (210 Cal. 323 [292 Pac. 415].)

In

Berg

v.

Traeger

a hearing before the Supreme Court was granted, and that court sustained the right of appeal, and decided that case on the merits of the appeal.

In this case of

Stout

v.

Farwell

there was no application for a hearing in the Supreme Court. The judgment of this court became final, and in due course, on April 7, 1930, the

remittitur

was sent down to the superior court.

Thereafter, on October 3, 1930, appellant filed his notice of motion for an order canceling, as void, the order of dismissal, and that the records of the action be returned to this court, and that the cause be restored to the calendar of this court for determination on the merits.

In accordance with said notice, the motion was presented to the court on the twenty-seventh day of October, 1930. As this was more than six months after the time of the order of dismissal, any possible right of appellant 'under .section 473 of the Code of Civil Procedure may not successfully be asserted.

(Wheelock

v.

Superior Court,

67 Cal. App. 601 [227 Pac. 931].) We are thus brought to the only question in the case. That question may be stated thus: When an appellate court erroneously dismisses an appeal, and such dismissal has been ordered upon the sole ground that the court is without jurisdiction of the appeal, is the order void upon its face, and may the court thereafter and at any time, however remote, determine such appeal upon the merits, notwithstanding that the order of dismissal was made, as stated?