Levy v. Levi

Full title: A.F. LEVY, Appellant, v. AGNES LEVI, Respondent

Court: Court of Appeal of California, Second District, Division Three

Date published: Nov 1, 1960

186 Cal.App.2d 21 (Cal. Ct. App. 1960)

8 Cal. Rptr. 639

Opinion

Docket No. 24435.

November 1, 1960.

APPEALS from a judgment of the Superior Court of Los Angeles County and from orders of dismissal and vacating order of transfer. Evelle J. Younger and Frank G. Swain, Judges. Appeals dismissed.

A.F. Levy, in pro. per., for Appellant.

No appearance for Respondent.

BISHOP, J. pro tem.[fn*] [fn*] Assigned by Chairman of Judicial Council.

The complaint in this action was filed November 30, 1950. On June 12th of the following year an order was made transferring the action from the Los Angeles Superior Court to that of Santa Clara County. A year elapsed, during which period the costs and fees needed to accomplish the transfer were not paid, and on July 25, 1952, an order was made dismissing the action, as was authorized by section 581b, Code of Civil Procedure.

No attack appears to have been made on any of these orders until, June 9, 1959, the plaintiff moved to vacate the order of transfer, basing his motion on the files and records and an argument accompanying his notice. Upon the denial of his motion he filed a notice of appeal, which we interpret as an attempt to make three appeals: (a) "from the order and judgment dismissing the within action"; (b) "from the subsequent ruling and order denying the motion upon which said judgment is based"; and (c) "from the jurisdiction of the court to entertain any general factual demurrer or motion to strike the complaint within."

Each of these purported appeals must be dismissed. [1] That taken from the order and judgment dismissing the action is years too late. [2] That taken from the order denying plaintiff's motion to set the dismissal aside runs afoul of the principle: "It is well settled that an order made after judgment is not appealable where the motion or application merely asks the court to repeat or overrule the former ruling on the same facts." ( Oppenheimer v. City of Los Angeles (1951), 104 Cal.App.2d 545, 550 [ 232 P.2d 26, 29].) [3] The last "appeal," that from the "jurisdiction" of the court, or rather lack of it, is, of course, not from an appealable matter.

The attempted appeals are and each is dismissed.

Shinn, P.J., and Vallée, J., concurred.

Appellant's petition for a hearing by the Supreme Court was denied December 28, 1960.