Gross v. Hazeltine

THE COURT.

By reason of an oversight this cause was prematurely submitted for decision and decided, in disregard of a stipulation of the parties allowing time for the

[132]

filing of further briefs. Upon petition for rehearing this fact was brought to our attention and the decision (269 Pac. 925) was promptly set aside to permit of further briefing and particularly to allow respondent to urge a point which he stated had “not been raised in California as yet.” Examination of the briefs so filed and of the contention most strongly relied on by respondent, which contention will receive consideration below, has failed to convince us that the conclusion announced in our former opinion was erroneous. That opinion is hereby adopted as and for the decision of the court:

“Respondent presents a motion to dismiss the appeal herein and to exclude the appellants’ bill of exceptions from the record. The action was brought to recover a money judgment and to foreclose a mechanic’s lien for services performed. Judgment was entered for the plaintiff on December 18 [20], 1926. Thereafter and on January 3, 1927, the defendants filed their notice of intention to move for new trial but a motion for new trial was never actually made. In passing, it might be said that the respondent failed to serve notice of the entry of judgment and the new trial proceedings were therefore timely instituted, under the provisions of section 659 of the Code of Civil Procedure, for the appellants at the time had not filed their notice of appeal or taken any other step that might be construed as a waiver of service of notice of the entry of judgment. The notice of appeal from the judgment was filed March 9, 1927. Respondent now moves to dismiss the appeal upon the ground that it was not taken within the time prescribed by law. The motion is without merit. Under the provisions of section 660 of the Code of Civil Procedure service of notice of the entry of judgment is necessary to start the time running within which a trial court may pass upon new trial proceedings. The parties cannot by their conduct waive the court’s jurisdiction in this respect.

(Strehlow

v.

Mothorn,

197 Cal. 112 [239 Pac. 850];