Opinion
Rehearing Granted and Submission Order Set Aside Sept. 20, 1928.
In Bank.
Action by D. Gross against C. E. Hazeltine and another. Judgment for plaintiff, and defendants appeal. On motions to dismiss appeal and to exclude bill of exceptions from the record.
Motions denied.
Appeal from Superior Court, Imperial County; Franklin J. Cole, Judge.
COUNSEL
Leonard, Surr & Hellyer, of San Bernardino, for appellants.
Harry W. Horton, of El Centro, for respondent.
OPINION
PER CURIAM
Respondent presents a motion to dismiss the appeal herein and to exclude the appellants’ bill of exceptions from the record. The action was brought to recover a money judgment and to foreclose a mechanic’s lien for services performed. Judgment was entered for the plaintiff on December 18, 1926. Thereafter, and on January 3, 1927, the defendants filed their notice of intention to move for new trial, but a motion for new trial was never actually made. In passing, it might be said that the respondent failed to serve notice of the entry of judgment, and the new trial proceedings were therefore timely instituted, under the provisions of section 659 of the Code of Civil Procedure, for the appellants at the time had not filed their notice of appeal, or taken any other step that might be construed as a waiver of service of notice of the entry of judgment. The notice of appeal from the judgment was filed March 9, 1927.
Respondent now moves to dismiss the appeal, upon the ground that it was not taken within the time prescribed by law. The motion is without merit. Under the provisions of section 660 of the Code of Civil Procedure service of notice of the entry of judgment is necessary to start the time running within which a trial court may pass upon new trial proceedings. The parties cannot by their conduct waive the court’s jurisdiction in this respect. Strehlow v. Mothorn, 197 Cal. 112, 239 P. 850; Moore v. Strayer, 175 Cal. 171, 165 P. 530. In view of the respondent’s failure to serve notice of the entry of judgment, it cannot now be said that the time within which the trial court might have passed upon the new trial proceedings has expired. This being so, the appeal is within time, for section 939 of the Code of Civil Procedure provides for the taking of an appeal from a judgment within 30 days after termination in the trial court of new trial proceedings.
However, even if it be assumed that notice of entry of judgment had been served in the instant case on the very day judgment was entered, it would avail the movant nothing, for the trial court would have had 2 months thereafter, or until February 18, 1927, within which to dispose of the new trial proceedings. Section 660, supra. The appellants, under section 939, supra, would then have 30 days additional or until March 20, 1927, within which to prosecute their appeal. The appeal, having been taken on March 9, 1927, was, therefore, well within time, and the motion to dismiss will have to be denied.
The motion to exclude the bill of exceptions from the record is grounded upon the assertion that the proposed bill was not served within time. In our opinion this motion must also be denied, for section 650 of the Code of Civil Procedure provides, among other things, for the preparation and service of a proposed bill of exceptions within 10 days after notice of decision denying motion for new trial or other termination of the new trial proceedings. If, as already shown, there has been no termination in this case of the new trial proceedings there is no way to determine the limit of time within which the proposed bill should have been prepared and served. Moreover, the respondent’s motion, made under section 473 of the Code of Civil Procedure to vacate the settlement and allowance of the bill of exceptions was denied by the trial court, and apparently no appeal has been prosecuted from the order denying the requested relief.
For the foregoing reasons, the motions to dismiss and to exclude the bill of exceptions from the record are and each is denied.