Cullin v. Foxley

SHENK, J. Motion to dismiss the appeal on the ground that it was taken too late.

The moving papers show that the action was brought to foreclose a mortgage on real property executed by the defendant Foxley. Judgment of foreclosure was entered on May 28, 1938, and written notice of entry of judgment was served on June 4, 1938, and filed on June 6, 1938. On June 14, 1938, the defendant filed a notice of intention to move for a new trial as to which no decision has ever been made by the trial court. The defendant filed a notice of appeal from the judgment on April 6, 1939.

The certificate of the clerk of the trial court, dated May 10, 1939, attached to the moving papers states that no proposed bill of exceptions had been filed, that there had been [126]no request to prepare transcript pursuant to section 953a of the Code of Civil Procedure, and that no proceedings were pending for the settlement of any transcript or bill.

The motion was heard on June 6,1939. It was then brought to the attention of this court that the clerk’s transcript (since filed herein on June 10, 1939), showed that on July 2, 1938, there was directed to and served on the plaintiff and her attorney, and on the commissioner appointed by the superior court in the foreclosure proceedings, an “Order staying proceeding in State Court”, issued by the conciliation commissioner of the United States District Court for the Southern District of California, Central Division. That order recites that on the first day of July the defendant herein deposited with the conciliation commissioner a petition under section 75 of the federal Bankruptcy Act (U. S. C. A., tit. 11, sec. 203). The order conveyed notice that thereupon said District Court acquired exclusive jurisdiction of the debtor and the debtor’s property, and enjoined and restrained the plaintiff, her attorneys and agents, and said commissioner, from further proceeding with the pending case of Cullin v. Foxley, and from “in any other manner interfering or attempting to interfere by judicial sale or otherwise with the debtor’s property or debtor until the further order of this court”.

On February 6, 1939, upon the petition of the conciliation commissioner the judge of said United States District Court dismissed the proceeding pending in said court.

Subsequently and on April 6, 1939, as noted, the defendant herein filed the notice of appeal. On the oral argument it was the contention of the defendant that because of the service of the stay order on the plaintiff, her attorneys, and the commissioner, the sixty-day period denoting the automatic termination of the new trial proceedings, as provided by section 660 of the Code of Civil Procedure, did not expire until March 9, 1939; therefore that the appeal was taken within the thirty days prescribed by section 939 of the same code.