Whalen v. Grattan

WASTE, C. J.

Respondents move to dismiss the appeal. The judgment appealed from was entered on October 19, 1927, in a proceeding brought under section 1664 of the Code of Civil Procedure to determine heirship. A motion for new trial interposed by the defendants was denied December 16, 1927, and on December 24th the defendants filed their notice of appeal, together with a notice and request to the clerk for the preparation of a transcript. On March 1, 1928, on motion of the respondents, an order was made and entered by the trial court dismissing the proceed

[467]

ings to obtain a transcript under section 953a of the Code of Civil Procedure. In support of the present motion to dismiss, the respondents urge that the appeal is without a record to support it, and that it was not taken within the time required by law.

The first ground of the motion is without merit, and the appeal will not be dismissed for the asserted lack of a record. At the time the motion was noticed and made here (April 3, 1928), the forty-day period (after March 1) prescribed by Rule II of this court, within which a record must be filed, had not expired. The motion, as to the ground first mentioned, is premature. Moreover, the appellants have expressed their intention of seasonably filing a transcript constituting the judgment-roll, and for that purpose have kept their time open by stipulation and order.

As to the second ground of the motion, the respondents contend that an appeal from a judgment in a proceeding under section 1664 of the Code of Civil Procedure must be taken within sixty days after the entry thereof, and this despite the institution of new trial proceedings. In other words, it is urged that while new trial proceedings are expressly authorized by the provisions of the section, such proceedings do not, as is ordinarily the rule, serve to extend the time for appeal from the judgment. So far as is pertinent here the section reads: “Such parties are allowed twenty days after the service of the complaint, as aforesaid, within which to plead thereto, and thereafter such proceedings shall be had upon such complaint as in this code provided in ease of an ordinary civil action; and the issues of law and of fact arising in the proceeding shall be disposed of in like manner as issues of law and fact are herein provided to be disposed of in civil actions, with a like right to a motion for a new trial and appeal to the supreme court; and the provisions in this code contained regulating the mode of procedure for the trial of civil actions, the motion for a new trial of civil actions, statements on motion for a new trial, bills of exception, and statements on appeal, as also in regard to undertakings on appeal, and the mode of taking and perfecting appeals, and the time within which such appeals shall be taken, shall be applicable thereto; provided, however, that all appeals herein must be taken within sixty