Tyrrell v. Baldwin

McKinstry, J. — Motion to dismiss appeal.

If the notice of appeal from the judgment was served and filed the day before the judgment was entered,, the appeal must be dismissed. (Code Civ. Proc., sec. 936, 939; McLaughlin v. Doherty, 54 Cal. 519; Thomas v. Anderson, 55 Cal. 43; People v. Center, 66 Cal. 567; Kimple v. Conway, 69 Cal. 71; Schroeder v. Schmidt, 71 Cal. 399.)

At the foot of the decree appealed from, as the same is set forth in the transcript, are the words “ Decree re[193]corded December 8, 1885,” and attached to the transcript, as amended, is the clerk’s certificate that “the' decree was entered of record on the eighth day of December, A. D. 1885, in judgment book,” etc. Section. 668 of the Code of Civil Procedure reads: “ The clerk; must keep with the records of the court a book, to be; called the judgment book, in which judgments must be-, entered.” And section 939 of the same code provides, that an appeal from a final judgment may be taken, within one year “ after the entry of the judgment.” It has been repeatedly held that an appeal from a judgment, may be taken within one year after its entry, although, more than a year after the judge has announced or rendered the judgment. Also — in the cases cited above — that an appeal taken before such entry is premature, and. should be dismissed.

An appeal is taken by filing" and serving a notice of' appeal. In the case now here the notice of appeal was served on the 7th and filed on the 8th of December,. 1885,—the day on which the judgment was entered.. There is nothing in the transcript, as amended on suggestion of diminution, to indicate that the notice of appeal was filed before the judgment was recorded. Moreover, we would not be justified in dividing a day for the purpose of rejecting jurisdiction of the appeal.

In the original transcript, written immediately below the acceptance of service of notice of appeal, are the; words and figures, “Duly filed with the clerk of said, court, December 7,1885.” This is evidently not a transcript of any indorsement or certificate of the clerk, and it is not covered by the stipulation of appellant’s attorney that “the foregoing are correct copies of papers on file,’” etc.

Motion to dismiss appeal denied.

Paterson, J., and Temple, J., concurred.

Hearing in Bank denied.