Shnell v. Brunton

WOOD (Parker), J.— This is a motion by respondent to dismiss the appeal herein upon the ground that the notice of appeal was not filed within the time provided by law. The appeal is from a “judgment and decree” settling the final account of a trustee of a testamentary trust after termination of the trust, allowing fees for “services as attorney and as administrator,” and apportioning and distributing the assets of the testamentary trust.

The decree was signed by the.judge, and was filed June 3, 1943. It was entered June 8, 1943. The' notice of appeal was filed August 5, 1943.

Respondent contends that the appeal was not taken within 60 days from the date of entry of the decree at length in the minutes. He asserts that the date of such entry was June 3, 1943, the date the signed decree was filed; and that the filing of the signed decree was equivalent to an entry at length in the minute book of the court. In support of said assertion he relies upon the Estate of Hanley (1943), 23 Cal.2d 120 [142 P.2d 423, 149 A.L.R. 1250], particularly the statement therein on page 122 that, “The filing of a signed decree is equivalent to entry ‘at length in the minute-book of the [247]court. ’ (Prob. Code, sec. 1221.) ’’ He also relies upon the Estate of Tierney (1944), 63 Cal.App.2d 295 [146 P.2d 700], wherein that statement was quoted at page 301.

The appellants contend that the 60 days’ period within which the appeal could have been taken should be computed from the date of the entry of the decree on June 8, 1943, and that the notice of appeal, having been filed on August 5, 1943, was therefore within the proper time. They argue in support of said contention that the signing and filing of a decree of distribution was not equivalent to an entry at length in the minute book for the reason that section 1221 of the Probate Code provides that a decree of distribution “must always be” entered at length in the minute book of the court; and that “by reason of the logic of things, the provisions of sec. 1221 of the Probate Code must apply to decrees distributing testamentary trusts as well as to decrees distributing estates. ’ ’

Section 1221 of the Probate Code provides: “All orders and decrees of the court or judge must be entered at length in the minute-book of the court, or else signed by the judge and filed; but decrees of distribution must always be so entered at length.”

Rule 2 of the new Rules on Appeal provides in part: “. . . notice of appeal shall be filed within 60 days from the date of entry of the judgment. ... (b) [What constitutes entry] For the purposes of this rule. ... (2) The date of entry of an order which is entered in the minutes shall be the date of its entry in the minutes, unless the entry in the minutes expressly directs that a written order be prepared, signed and filed, in which case the date of entry shall be the date of filing of the signed order. ... (4) The date of entry of a decree of distribution in a probate proceeding shall be the date of its entry at length' in the minutes.” (Italics added.) It is further provided in the Rules on Appeal (Rule 40, subd. (g), p. 28) that “ ‘Judgment’ includes any judgment, order or decree from which an appeal lies. ”