Rainey v. Crowder

CONREY, P. J.

In this action of interpleader the defendants Standley have appealed from that portion of the judgment which awarded the disputed fund to certain co-defendants of the appealing defendants. The respondent defendants have duly presented their motion for dismissal of the appeal upon the ground that no transcript on appeal has been filed; and that no proceeding has been taken to obtain a bill of exceptions or any transcript, and that the time for such proceedings, and for filing of a transcript in this court, has expired; and on the ground that the notice of appeal.“was not filed in time”.

The following dates of proceedings are noted: 1932, September 21, judgment entered; September 30, notice of entry of judgment served and filed; November 14, motion for new trial denied; December 14, notice of appeal filed; 1933, March 7, notice of motion to dismiss appeal filed herein.

In opposing the motion to dismiss, appellants contend that their notice of appeal was within time, because it was filed within thirty days after the ruling on motion for new trial. (Code Civ. Proc., sec. 939.) Since it appears that the motion for new trial was pending within sixty days from the date of entry of judgment, it would appear that this contention of appellants should be sustained. We think that the fact that the motion for new trial had been denied less than sixty days after the date of entry of judg

[564]

ment does not deprive appellant of the thirty days allowed for filing of notice of appeal after entry of the order denying the motion for a new trial. It is argued by counsel for respondents that the notice of appeal came too late because the proceeding on motion for new trial was not pending at the end of the sixty-day period following the entry of judgment,—the motion having been denied on November 14th. In support of this position he refers to

Iske

v.

Stockwell-Kling Corp.,

128 Cal. App. 203 [17 Pac. (2d) 203],

Bates

v.