Gillies v. Brent

BARNARD, P. J. This is a motion to dismiss the appeal on the ground that it was taken too late, notice of appeal having [586]been filed more than sixty days after entry of the judgment and- more than thirty days after the denial of a motion for a new trial.

The judgment was entered on March 15, 1945, and notice thereof was served and filed on March 16. Notice of intention to move for a new trial was served and filed on March 22, 1945, and was denied on April 9, 1945. Notice of this order was served and filed on April 16, 1945, and notice of appeal was served and filed on June 8, 1945.

In opposition to the motion to dismiss, the appellants contend that the filing of the notice of appeal on June 8, 1945, was within 120 days of the date of the entry of the judgment and, therefore, within the. time for appeal as extended by subdivision (b) of rule 3 of the Rules on Appeal. Subdivision (a) of rule 3, where a motion for a new trial is denied, extends the time for appeal from the judgment until 30 days after denial of the motion. Subdivision (b) provides that where a motion to vacate a judgment or to vacate a judgment and enter a new and different judgment is not acted on within 120 days after entry of the judgment, the time for appeal from the judgment is extended until 120 days after entry of the judgment.

The only notice of motion which was here filed is entitled “Notice of Intention to Move Por a New Trial.” It states that the plaintiffs and cross-defendants “intend to move the court to vacate and set aside the judgment and decision of the court heretofore rendered in the above cause and to grant a new trial of said cause upon the following grounds, to wit:.” This is followed by a statement of most of the statutory grounds for granting a new trial, as set forth in section 657 Code of Civil Procedure.

The appellants rely on this notice as being a notice of intention to make two motions, (1) a motion to vacate and set aside the judgment and (2) a motion to grant a new trial. They state in their supporting affidavit that both an oral motion to vacate and set aside the judgment and a motion for a new trial were made on April 9, 1945; that the court then denied the motion for a new trial; but that the court has never ruled on the motion to vacate and set aside the judgment. It is, therefore, contended that they had, under rule 3(b), 120 days from the date of the judgment in which to file notice of appeal. The record before us does not show that two separate motions were made on April 9, and the