Wilcox v. Hardisty

[753]

ANGELLOTTI, C. J.

This is a motion to dismiss an appeal from a judgment and an order denying a new trial, on the ground, as to the appeal from the judgment, that the appeal was taken too late, and as to the order denying a motion for a new trial, that the same is not an appealable order.

The order denying a new trial was made December 1, 1917, and in view of the law as it then existed, it must be held that no appeal lay therefrom.

(Woodruff

v.

Colyear,

172 Cal. 440, [156 Pac. 475].)

As to the appeal from the judgment: The judgment was entered April 27, 1911. The appeal therefrom was not taken until December 21, 1917. At the time of the entry of the judgment and until August 8, 1915, the time within which an appeal might be taken from a judgment was limited to six months. Therefore on August 8, 1915, the time for appeal from the judgment had long since elapsed. There was, however, pending at that time a proceeding on motion for a new trial which had been duly instituted, and the law up to that time provided for an appeal from any order that might be made denying or granting the motion. On December 1, 1917, the bill of exceptions to be used on said motion for a new trial was settled and on the same day the motion for a new trial was heard and denied, and the appeal was taken within thirty days thereafter. At its session in 1915, the legislature so changed our law as to abolish the right of appeal from an order denying a motion for a new trial and to provide that such order might be reviewed on an appeal from the judgment, and to further provide in regard to the time within which appeals from the judgment might be taken that “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.” (Code Civ. Proc., secs. 939, 956, 963.) This change became effective August 8, 1915, at a time when the appellant’s right to appeal from the judgment had long since lapsed. We think it was the clear intent of the legislature, as indicated by this statutory provision, in taking away the right of appeal from the order denying a motion for a new trial to provide for a