Seger v. Sutherland

FILES, P. J. Appellant is appealing from an adverse judgment in a will contest. Respondent has moved to dismiss the appeal upon the grounds (1) that the notice of appeal was filed late, and (2) appellant has failed to designate and pay for a record within the time allowed by the rules. Appellant has offered an explanation for her delay in purchasing a record and has stated that she now has funds available and will proceed diligently hereafter if relief from default is granted.

With respect to the delay in preparation of the record, this court has discretion to grant relief from default. (Cal. Rules of Court, rule 45(e).) Under the circumstances this court is disposed to grant relief.

With respect to the other ground of the motion, rule 45(e) forbids this court to relieve a party from failure to give timely notice of appeal. It is therefore necessary to determine whether the notice was timely under the applicable law.

The clerk’s certificate attached to the notice of motion (pursuant to rule 41(a), Cal. Rules of Court) shows this chronology (all dates in 1967) :

January 6. Judgment entered.

January 6. Notice of entry mailed by the clerk.

January 13. Notice of entry filed and mailed by the attorneys for respondent.

January 16. Notice of intention to move for a new trial filed by appellant.

February 20. Motion for a new trial argued and submitted.

April 10. Notice of appeal filed.

[672]The superior court never ruled on .the motion for a new trial.

The time limits for filing a notice of appeal are set forth in rules 2 and 3. Rule 2 is inapplicable here. Rule 3 provides: “(a) [New trial proceeding] When a valid notice of intention to move for a new trial is served and filed by any party, (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 either entry of the order denying the motion or denial thereof by operation of law, but in no event may such notice of appeal be filed later than 180 days after the date of entry of the judgment whether or not the motion for new trial has been determined; . . . ”