Meda v. Lawton

WASTE, C. J.

Respondents move to dismiss the appeal of certain appellants. The actions were brought to foreclose mechanics’ liens and for judgment against the contractor and his bondsmen. The appellants Gerske, whose appeal is thus attacked, are the owners of real property. Lawton is the contractor who agreed to erect a dwelling-house thereon, and the National Surety Company furnished his bond. The actions were consolidated for trial in the court below, and a single judgment in favor of the plaintiffs was entered covering all the issues between the various parties. It provided for money judgments in favor of the plaintiffs and against the defendants Lawton and National Surety Company in the aggregate sum of $11,541.20, with interest and costs, decreed that each of the amounts found to be due the several plaintiffs were liens against the real property of defendants Gerske, and ordered the sale of the property in satisfaction of the liens. Provision was made for deficiency judgments against Lawton.

The judgment was entered September 26, 1930. Motions for new trial and to vacate the judgment, duly made by Lawton, the contractor, and the surety company, were denied, and the order was entered on November 22d following, and within the sixty days’ limitation fixed by section 660 of the Code of Civil Procedure. Appeal was thereupon taken by defendants Lawton and the National Surety Company, and is now pending and undetermined in this court..

No motion for a new trial was made by the defendants Gerske, and they did not join in the motions made by the other defendants; but on December 11, 1930, they gave and filed notice of appeal from the judgment against them. It is this appeal which the plaintiffs [respondents] move to dismiss upon the ground that the appeal was taken too late. The decision on the motion depends upon the determination of but one point, viz., did the new trial proceedings instituted by the contractor and his surety operate to extend the time within which the owner might file notice of appeal, as provided in section 939 of the Code of Civil Procedure? The pertinent sentence of the section reads as follows: “If proceedings on motion for a new

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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.” It must be noted that this language could hardly be more general, and in our view it warrants the construction that proceedings on motion for a new trial operate to extend the time for appeal from the judgment for all parties seeking to appeal.