Socol v. King

TRAYNOR, J. Respondent moves to dismiss plaintiffs’ appeals from a judgment of the superior court and from an order denying their motion to vacate the judgment and enter a new and different judgment under section 663 of the Code of Civil Procedure.

All of the following events took place in 1948. Judgment was entered in the trial court on April 28th. Notice of entry was filed by respondents on May 8th and by appellants on May 24th. On May 17th, appellants filed notice of intention [294]to move for an order vacating the judgment and entering a new and different judgment under subdivision 1 of section 663 of the Code of Civil Procedure.* On September 13th, the trial court filed a written order denying the motion. Appellants filed on September 24th, a notice of appeal from the judgment and on October 16th, a notice of appeal from the order denying the motion to vacate the judgment. Respondent moves to dismiss the appeals on the grounds that (1) the appeal from the judgment was taken too late and (2) the order denying the motion to vacate under section 663 is not an appealable order.

1. The appeal from the judgment. Rule 3(b) of the Rules on Appeal provides: “When a motion to vacate a judgment or to vacate a judgment and enter another and different judgment is made by any party on any ground within 60 days after entry of judgment, (1) if the motion is denied or not decided by the superior court within 120 days after the entry of the judgment, the time for filing the notice of appeal from the judgment is extended for all parties until 30 days after entry of the order denying the motion to vacate or 120 days after entry of the judgment, whichever shall be less.”

The 120th day after the entry of the judgment was August 26th. Under rule 3(b) an appeal from the judgment had to be filed by that time, and the notice of appeal filed on September 24th was therefore too late. Appellants contend, however, that the purpose of rule 3(b) was not to establish an ultimate limit of 120 days from the entry of the judgment within which an appeal might be taken but to grant 30 days additional time from the denial of the motion however that denial might occur. It is urged that the rule be read as granting an extension of 30 days after denial of the motion “or after 120 days after entry of judgment. ’ ’ The plain language of the rule does not admit of such construction.