Glaze v. Visalia Improvement Ass'n

THE COURT. This is a motion to dismiss an appeal on the ground that the notice of appeal was not filed within 60 days after entry of an order dismissing the action. On August 6, 1958, plaintiffs Thomas H. Glaze, et al., filed an action in the Superior Court in Tulare County against the Visalia Improvement Association, et al., for an accounting, removal of trustee and other relief.

The records of the county clerk of Tulare County show that the following order was made on April 15, 1959, and entered in the minutes of the superior court:

‘ ‘ Superior Court of the State of California for the County of Tulare

April 15,1959

Hon. W. G. Machetanz, Judge

Cletis V. Bonnett, Clerk

“Thomas H. Glaze, et al,

Plaintiffs,

vs. No. 51510

Visalia Improvement Association, et al,

Defendants.

“Upon considering defendant’s motion to dismiss this action and the arguments of counsel, it is ordered that said action and the first amended complaint filed herein be dismissed as to all defendants. ’ ’

The register of actions kept by the county clerk contains the following entry: “April 15, 1959—Motion to dismiss granted, Book 51, page 129.” The records of the county clerk also show that a judgment, of dismissal in said action was filed on April 20,1959, and entered on April 21,1959; that an order amending the judgment of dismissal by adding the name of another defendant and ordering that defendants recover costs was filed April 22, 1959, and entered April 23, 1959; that no notice of intention to move for a new trial was filed and that notice of [290]appeal was filed by the attorney for plaintiffs and appellants on June 18,1959.

Plaintiffs in their notice of appeal gave notice that they appealed:

“. . . from the Judgment of Dismissal filed herein on April 20, 1959, and entered on April 21,1959, in Book 81, Page 377, of Judgments, and from the Order Amending Judgment of Dismissal filed herein on April 22, 1959, and thereafter, on April 23, 1959, entered herein in Book 81, at Page 392, of Judgments, and from both of them, and from the whole of each of them.”