Opinion
Rehearing Granted Sept. 26, 1927.
In Bank.
Action by L. A. Jackson against E. J. Dolan and another. From a judgment for plaintiff, defendant Gregory Ashe appeals. On motion to dismiss.
Motion denied.
Appeal from Superior Court, Imperial County; Phil D. Swing, Judge.
COUNSEL
Randall, Bartlett & White, Vincent C. Hickson, and A. P. G. Steffes, all of Los Angeles, for appellant.
Harry W. Horton, of El Centro, for respondent.
OPINION
PER CURIAM.
This is a motion to dismiss an appeal from a money judgment entered in the plaintiff’s favor by the superior court in and for the county of Imperial. Subsequent to the entry of such judgment and on December 17, 1920, the defendants moved for a new trial. The minutes of the trial court, as originally recorded, showed the motion for a new trial to have been granted as to the defendant Ashe and denied as to the defendant Dolan on Friday, December 31, 1920. Within the statutory period the plaintiff served and filed his notice of appeal from the order granting a new trial to the defendant Ashe. On March 23, 1921, and pending the determination of his appeal from the order granting such new trial, the plaintiff filed in the trial court a notice of motion to direct the clerk of that court to correct its minutes so as to show that the order purporting to grant a new trial to the defendant Ashe had, in fact, been made and filed on Sunday, January 2, 1921, and not on Friday, December 31, 1920, as the minutes of the trial court then indicated. The significance of this motion lies in the fact that the term of office of the superior judge who made said order had expired on midnight of December 31, 1920. After hearing thereon, the trial court made an order denying the plaintiff’s motion to correct the minutes. Upon an appeal therefrom the District Court of Appeal reversed said order (Jackson v. Dolan, 58 Cal.App. 372, 208 P. 315), with directions that the trial court ascertain the true date of the order granting to the defendant Ashe a new trial and correct its minutes accordingly. Thereafter the plaintiff renewed in the lower court his motion to correct the minutes whereupon said court, on May 16, 1924, made an order, in obedience to the mandate of the appellate court, correcting its minutes. As corrected, the minutes show the order granting a new trial to have been made and filed on Sunday, January 2, 1921— two days after the expiration of the term of office of the superior judge purporting to make the same. An appeal prosecuted by the defendant Ashe from the order of the trial court correcting its minutes terminated in an affirmance of the order. Jackson v. Dolan, 72 Cal.App. 48, 236 P. 318. Thereafter and on March 27, 1925, the District Court of Appeal filed its decision reversing the order of the trial court granting to the defendant Ashe a new trial. Jackson v. Dolan, 72 Cal.App. 51, 236 P. 319. In reversing said order the appellate court declared that the action of the trial judge in granting the motion after the expiration of his term of office was functions officio and void; that the case therefore stood, in legal contemplation, as though no order disposing of the motion for new trial had been made; and that the motion for new trial was therefore deemed to have been denied by the lapse of time provided for in section 660 of the Code of Civil Procedure. The defendant Ashe, on May 21, 1925, and within 30 days after the decision reversing the order granting to him a new trial had become final, filed his appeal herein from the judgment entered in the plaintiff’s favor on December 15, 1920.
On February 26, 1927, the respondent filed in this court a notice of motion to dismiss the appeal from the judgment, it being asserted in said notice of motion that the appeal had not been filed or taken within the time provided by law. The motion to dismiss was granted by this court on March 7, 1927, and an order made dismissing the appeal. A petition for rehearing was thereupon filed herein by the appellant Ashe, which petition led the court to conclude that the appellant had not been served with proper notice of the motion to dismiss his appeal. The order dismissing the said appeal was for this reason vacated and the matter ordered on the June, 1927, calendar of this court. Upon the calling of that calendar, the motion to dismiss the appeal from the judgment was argued at length by counsel, and said motion is now before us upon its merits.
The appellant asserts that the facts of this case present a novel situation and suggests that where, as here, an order granting a new trial is declared upon an appeal therefrom to be void, and for this reason reversed, the time for an appeal from the judgment should be held not to expire until 30 days have elapsed after the filing in the trial court of the remittitur issued upon such reversal of the order granting a new trial. In advancing this contention the appellant attempts to find comfort in that part of section 939 of the Code of Civil Procedure which provides for the taking of an appeal from a judgment within 30 days after entry in the trial court of the order determining a motion for new trial ‘or other termination in the trial court of the proceedings upon such motion.’ The filing in the trial court of the remittitur issued upon the reversal of the order granting a new trial is asserted by the appellant to constitute such ‘other termination’ in the lower court of the proceedings on new trial as to warrant the taking of an appeal from the judgment within 30 days thereafter.
The respondent and moving party urges, in support of his motion to dismiss, that the only termination, contemplated by the provisions of section 939 of the Code of Civil Procedure, of proceedings on new trial, other than the trial court’s order thereon, is that which results from the expiration of the 2 months’ period prescribed by section 660 of the Code of Civil Procedure. Reasoning from this premise, the respondent concludes that the appeal herein was not taken within 30 days of the expiration of said 2 months’ period.
In the treatment by counsel of the problem presented herein a matter which we deem decisive thereof has escaped attention. In our opinion the record before us will not warrant the granting of the motion to dismiss, for said record fails to disclose whether service of notice of the entry of judgment had ever been made upon the appellant. Section 660 of the Code of Civil Procedure provides, in part, that:
‘The power of the court to pass on motion for a new trial shall expire within two months after the verdict of the jury or service on the moving party of notice of the entry of the judgment. If such motion is not determined within said two months, the effect shall be a denial of the motion without further order of the court.’
The absence from the record herein of any showing of service of notice of the entry of judgment precludes, at this time, as accurate determination of the period within which the trial court might have passed upon the motion for new trial. This being so, we are unable to ascertain the exact date upon which the motion for new trial was denied by operation of law. It is true that in the case of Jackson v. Dolan, 72 Cal.App. 51, 236 P. 319, it is asserted that the motion for new trial is deemed to have been denied by the expiration of the 2 months’ period prescribed in section 660 of the Code of Civil Procedure. That case fails to indicate, however, when such statutory denial of the motion for new trial occurred. In the absence of a showing herein of the service of notice of the entry of judgment, it is impossible for us to ascertain the exact time of the termination in the trial court of the proceedings on new trial. This, in turn, precludes a declaration that the instant appeal from the judgment was not taken within 30 days of the termination in the trial court of the new trial proceedings.
From what has already been said, it is apparent that this conclusion is rendered necessary by reason of the absence from the record of any showing of service upon the appellant of notice of the entry of judgment. Our examination of the record has failed to disclose any thing tending to suggest a waiver by the appellant of such notice of the entry of judgment. The recitals contained in the appellant’s notice of motion for new trial and in his notice of appeal from the judgment may not be availed of as a waiver by appellant of the required service of notice of the entry of judgment so as to start running the 2 months’ period within which the trial court might have, under the provisions of section 660 of the Code of Civil Procedure, acted upon the motion for new trial. Strehlow v. Mothorn, 197 Cal. 112, 114-116, 239 P. 850. That case refers with approval to the case of Moore v. Strayer, 175 Cal. 171, 165 P. 530, wherein it was contended upon motion to dismiss an appeal that the appellants by serving and filing their notice of intention to move for a new trial without waiting for service of notice of the decision of the court had thereby set in motion the running of the time within which the trial court hal power to determine said motion, and that said motion, not having been determined by the court within said time, had been denied by operation of law upon a date more than 30 days prior to the filing of the notice of appeal. In passing upon this contention the court, in Moore v. Strayer, supra, declared:
‘If the rights of the party appealing were alone to be considered, the giving of the notice of intention might, as to him, be construed as a waiver of service of notice of decision, but the provision relates to the power of the court, jurisdiction of which to pass upon the motion is divested only by the service of notice of decision followed by the lapse of a period of three months, during which it is empowered to act on the motion for a new trial.’
The opinion in the case of Strehlow v. Mothorn, supra, states that:
‘The Legislature of 1917 (Stats. 1917, p. 240) amended the foregoing amendment to said section by substituting the words ‘notice of the entry of the judgment’ in place of the words ‘notice of the decision of the court,’ and the Legislature of 1923 (Stats. 1923, p. 233) further amended the same by shortening the time within which the power of the trial court to pass upon motions for new trial must be exercised from ‘three months’ to two months. In making said latter amendment the Legislature re-enacted the section with the interpretation which this court had theretofore placed upon it.’
It follows, therefore, that in the absence from the record in the instant case of any showing of service of notice of the entry of judgment the time within which the trial court might have passed upon the motion for new trial is not susceptible of definite ascertainment. In view of this fact, we are not prepared to hold that the appeal from the judgment was taken more than 30 days after the trial court might have acted upon the motion for new trial.
The motion to dismiss said appeal is therefore denied.