Chase v. Glynn

Opinion

THE COURT. Plaintiff has made a motion to dismiss defendant’s appeal upon the ground that the notice of appeal was untimely.1

The following facts appear: judgment was entered March 30, 1973, and notice of entry of judgment was mailed to counsel the same day.

There was a motion for new trial, which was denied by a minute order filed May 15, 1973. Notice of entry of this order was mailed by the clerk the same day. The clerk’s certificate which accompanied the motion to dismiss states simply that “said motion was denied May 15, 1973.” We have examined the minute order in the superior court file. The only date it bears is May 15, 1973. There is no separate statement on the order as to the date of its entry as called for in Code of Civil Procedure section 660.2

The clerk’s certificate which accompanied the motion to dismiss, with the notice mailed by the clerk on May 15, are sufficient proof [31]that May 15 was the effective date of the court’s ruling within the meaning of section 660, Code of Civil Procedure.

Notice of appeal was filed June 15, 1973. This notice was more than 60 days after notice of entry of judgment and 31 days after entry of the order denying the motion for a new trial. The 30-day period prescribed in rule 3 runs from the date of the entry of the order.

Counsel for defendant asks us to consider that the order denying the motion for a new trial was served on him by mail, and argues that his 30 days should run from May 16, when he received the notice. He calls attention to rule 42 which provides: “(a) When a motion to dismiss an appeal is filed prior to the filing of the record on appeal in the reviewing court, it shall be accompanied by a certificate of the clerk of the superior court setting forth the following:

“(5) The disposition of proceedings on motion for new trial, the date of such disposition, and the date of service of written notice thereof.” Defendant contends that this requirement of rule 42 implies that the date of service of the notice of ruling must have some significance. To this there are two answers: First, where the date of service is material, Code of Civil Procedure section 1013 provides that service is complete at the time of mailing; further, although that section extends certain time periods which commence with a notice by mail, it also provides that such an is inapplicable to the time for filing a notice of appeal.