Iske v. Stockwell-Kling Corp.

[193]

THOMPSON (IRA F.), J.

Respondent has moved to dismiss the appeal in this case upon the ground that the notice of appeal was not filed within the time required by law. The record shows that notice of intention to move for a new trial was filed on May 27, 1932, there having been no notice of entry of judgment theretofore served upon appellant. Subsequently, and on May 31, 1932, respondent served upon appellant a notice of entry of judgment. A motion for a new trial was made and a denial thereof was entered on July 27, 1932, and a notice of appeal was filed on August 26, 1932.

The parties agree that if the sixty-day period within which the court had power to rule on the motion for a new trial started to run from the time notice of intention to move for a new trial was filed the ruling of the court on such motion was beyond the sixty-day period, that the motion was therefore deemed denied by operation of law on July 26, 1932, and hence the notice of appeal was not filed within thirty days thereafter as required by the provisions of section 939 of the Code of Civil Procedure, which reads as follows: “An appeal may be taken from any judgment . . . within sixty days from the entry of said judgment ... If proceedings on motion for a new trial are pending, the time for appeal from the judgment shall not expire until thirty days after entry in the trial court of the order determining such motion for a new trial,

or other termination in the trial court of the proceedings upon such motion.”

(Italics ours.)

Respondent contends that under the provisions of section 660 of the Code of Civil Procedure, as amended in 1929, and in effect at the time of the trial, the date on which notice of intention to move for a new trial was filed started the time running within which the court had power to rule on such motion. That section reads as follows: “The power of the court to pass on motion for a new trial shall expire sixty (60) days from and after notice on the moving party of written notice of the entry of the judgment, or if such notice has not

theretofore

been served, then sixty (60) days after filing of notice of intention to move for a new trial. If such motion is not determined within said sixty