Boucher v. Kriehn

McCOMB, J. Respondent moves to dismiss this appeal upon the ground that it was not taken within the time permitted by section 939 of the Code of Civil Procedure and therefore this court is without jurisdiction to entertain the same.

It is conceded that on January 4, 1945, the judgment was entered from which the purported appeal was taken and that the notice of appeal was not filed until March 8, 1945. No proceedings were ever instituted for a new trial.

This is the sole question necessary for us to determine:

Was appellant’s notice of appeal filed within the time prescribed by law$

This question must be answered in the negative and is governed by the rule that the normal time in California for filing a notice of appeal is sixty days from the date of entry of the judgment. (Code Civ. Proc., § 939; Rules on Appeal, rule 2(a).)

Since none of the conditions set forth in rule 3 of Rules on Appeal, which constitute an exception to the normal time for taking an appeal, exist in the present case, the foregoing general rule is here applicable.

[721]Applying such rule to the facts in the instant case, it appears that the notice of appeal was filed on March 8, 1945, which is sixty-three days after the judgment was entered in the trial court; thus being three days after the time permitted by law. This court is therefore without jurisdiction of the appeal and the same should be dismissed.

It is so ordered.

Moore, P. J., concurred.