Chain v. Chain

THE COURT. Respondent moves to dismiss the appeal herein upon the ground that the appeal from the judgment was not filed within the time provided by law and the Rules of Court and upon the further ground that an appeal is attempted to be taken from an order subsequent to entry of judgment (order denying a new trial) which order is not appealable.

The record reflects that an interlocutory judgment of divorce was entered for plaintiff on September 26, 1952. [470]Notice of intention to move for new trial was filed December 3, 1952, and denied on February 2, 1953. Rule 3(a), Rules on Appeal, provides that when a valid notice of intention to move for a new trial is served and filed by any party within 60 days after entry of judgment, if the motion is denied the time for filing the notice of appeal from the judgment is extended for all parties until 30 days after either entry of the order denying the motion or denial thereof by operation of law.

In the instant ease the 60-day period expired on November 25, 1952, and the notice of intention to move for a new trial was not filed until December 3, 1952. The notice of intention to move for a new trial having been filed more than 60 days after entry of judgment, the time for filing notice of appeal from the judgment was not extended beyond the 60-day “normal time” within which notice of appeal must be filed after entry of judgment under rule 2(a), Rules on Appeal. Consequently the notice of appeal from the judgment was filed too late, and as there is no appeal from the order denying the motion for a new trial, it is manifest that the appeal therefrom must be dismissed.

The appeal from the judgment and the attempted appeal from the order denying a new trial are, and each is, dismissed.

Appellant’s petition for a hearing by the Supreme Court was denied September 24, 1953.