McDonald v. McDonald
Before: Melvin
Synopsis
Appeal—Notice op Entry op Judgment—Limitation op Time por Taking-—Section 941b op Code op Civil Procedure.—Before a respondent may invoke the limitation of sixty days contemplated by section 941b of the Code of Civil Procedure as the time within which, after notice of the entry of judgment, an appeal may be taken, there must be a formal notice of such entry actually served upon the attorney of record of the appellant.
Id.—Waiver op Notice op Entry op Interlocutory Decree op Divorce —Filing Bill op Exceptions.—The filing by a defendant against whom an interlocutory decree of divorce has been rendered of a bill of exceptions to be used on appeal therefrom, does not waive the giving of the formal notice of the entry of judgment, required to be given by section 941b of the Code of Civil Procedure in order to set in motion the limitation of sixty days after such notice within which the appeal may be taken.
Id.—Appeal by New Method Taken Within Six Months of Entry of Decree—Jurisdiction.-—In the absence of the giving of a formal notice of the entry of an interlocutory judgment for divorce, the supreme court has jurisdiction of an appeal therefrom taken by the “new method” within six months after its entry.
MELVIN, J.
George McDonald, plaintiff and respondent, moves to dismiss the appeal of defendant from the judgment against her and “from that part of the judgment being the intermediate order denying defendant’s motion to set aside default. ’ ’
The facts as disclosed by the certificate of the clerk and by respondent’s uncontradicted affidavit are as follows: The judgment granting an interlocutory decree of divorce to plaintiff from defendant upon the ground of extreme cruelty was rendered on the twenty-seventh day of October, 1913, and entered in the appropriate judgment book of the county clerk’s office on the following day. The notice of appeal was filed February 13, 1914. It is accompanied by no evidence of service upon the adverse party. On October 7, 1913, the court had entered the default of the defendant, and on the fifteenth day of the same month, after a full hearing upon defendant’s motion to set aside the default, the said motion had been denied. Defendant appeared personally with her counsel at the trial, introduced evidence in opposition to the allegation of the complaint, and her counsel examined and cross-examined witnesses. The bill of exceptions signed by the judge who tried the cause, was filed November 10, 1913.
It is contended by respondent that by filing her bill of exceptions the appellant waived notice of decision and that as no notice of appeal of any sort was filed until more than sixty days had elapsed after the entry of the decree and after
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the proposed bill of exceptions had been filed and signed by the judge, defendant lost her right to appeal.
Respondent’s first and most important contention is contrary to established authority. The actual notice of the entry of the judgment, if any there were, implied by the filing of the bill of exceptions on behalf of defendant, was not sufficient to meet the requirements of section 941b of the. Code of Civil Procedure. Before respondent may invoke the limitation of sixty days contemplated by that section as the time within which, after notice of the entry of judgment, an appeal may be taken, there must be a formal notice of such entry
actually served upon the attorney of record. (Huntington Park Imp. Co.
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