Smith v. Big Horn Mining Co.

California Court of Appeal Nov 24, 1958 No. Civ. No. 5982Published

Before: Griffin

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Holding. The court dismissed the appeal for lack of jurisdiction, finding that the notice of appeal was filed after the statutory deadline because the motion for a new trial had been denied by operation of law 60 days after the notice of entry of judgment was mailed.

Issues

Whether the notice of appeal was filed within the time limits prescribed by the Rules on Appeal.
Whether the trial court's power to rule on a motion for a new trial expired 60 days after the notice of entry of judgment was mailed.

Disposition. dismissed

Quotations verified verbatim against the opinion

“the court’s power to pass on the motion expired 60 days after service on the moving party of written notice of entry.”

“It is a rule that positive statements in an affidavit should prevail over mere inferences contained in an affidavit to the contrary.”

“we conclude, that by the record, defendants have met the burden imposed upon them and this court is without jurisdiction.”

GRIFFIN, P. J. Plaintiffs brought this action for damages against defendants. It resulted in a jury verdict for defendants, judgment upon which was entered on June 11, 1958.

According to the clerk’s certificate on file in connection with the motion oE defendants to dismiss the appeal, it shows a written notice of entry of said judgment was filed on June 16, 1958, in said action in Independence, Inyo County, where the ease was tried. Attached to the written notice of entry was an affidavit of service by mail, stating that a copy of said notice of entry of judgment was mailed by the attorneys for the defendants to the attorneys for the plaintiffs on June 12, 1958. The clerk’s record also shows that on June 23, 1958, plaintiff filed a notice of intention to move for a new trial; that said motion was heard on July 18, 1958, and it was ordered submitted; that the court did not make any ruling on said motion then nor at any other subsequent time; that on September 16, 1958, a notice of appeal, dated September 16, 1958, was filed herein; that on September 22, 1958, a notice to prepare a clerk’s and reporter’s transcript was filed by plaintiffs and that the record has not been prepared pursuant to said demand.

On October 3, 1958, defendants filed a notice that they would move to dismiss the appeal on October 14, 1958, based upon the papers and files of record, the certificate of the clerk and affidavit of counsel for defendants claiming that the notice of appeal was filed too late, citing such authority as Estate of Hanley, 23 Cal.2d 120, 122 [142 P.2d 423, 149 A.L.A. 1250] ; Bryant v. Los Angeles Transit Lines, 116 Cal.App.2d 473 [253 P.2d 731] ; Kientz v. Harris, 117 Cal.App.2d 810 [257 P.2d 44] ; and rule 3, subdivision (a), Rules on Appeal [36 Cal.2d 2] which provides:

“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, (1) 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 neither entry of the order denying the motion or denial thereof by operation of law; . . .’’

The notice of intention to move for a new trial filed June 23, was clearly within the time permitted by section 659 of the Code of Civil Procedure. (Radford v. Crown City [504]Lumber & Mill Co., ante, p. 18 [331 P.2d 438] [Second District Court of Appeal No. 23249, filed Nov. 10, 1958.] Section 660 of the Code of Civil Procedure includes the exception:

Smith v. Big Horn Mining Co.

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