Opinion
Hearing Granted Dec. 31, 1942.
Appeal from Superior Court, Los Angeles County; Ruben S. Schmidt, Judge.
Action by Robert Lees McCordic against Samuel M. Crawford and others and the Abbot–Kinney Company to recover damages for injuries received by plaintiff when a strap on an amusement device broke. From a judgment in favor of the plaintiff, the Abbot–Kinney Company appeals. Motion for diminution of the record.
Motion for diminution of record granted, and appeal dismissed. COUNSEL
Parker & Stanbury, Harry D. Parker, Raymond G. Stanbury, and Vernon W. Hunt, all of Los Angeles, for appellant.
Borton, Petrini, Conron & Borton, of Bakersfield, and Reginald I. Bauder, of Los Angeles, for respondent.
OPINION
McCOMB, Justice.
From a judgment in favor of plaintiff after trial before a jury in an action to recover damages for personal injuries received when a strap on an amusement device called the "Cluve Loopa" broke, defendant Abbot-Kinney Company, hereinafter referred to as defendant, attempts to appeal. There is also a motion for diminution of the record to have included in the record before this court:
(1) A notice of motion to strike a notice of entry of judgment, which motion was made by the appealing defendant; and
(2) An order denying the aforesaid motion.
The motion for diminution of the record should be granted and the documents referred to therein will be considered by this court as part of the record before it.
These are the material facts:
January 16, 1942, plaintiff’s attorney served on defendant a notice of entry of judgment in which it was stated that the judgment was entered on January 13, 1942. The judgment was in fact entered on January 14, 1942. January 21, 1942, defendant served and filed a notice of intention to move for a new trial. March 19, 1942, defendant’s motion for a new trial was granted. No appeal was taken from this latter order and it has now become final.
We are confronted at the outset with this question:
Had the time within which the trial court had jurisdiction to grant a motion for a new trial elapsed on March 19, 1942?
This question must be answered in the negative and is governed by the following pertinent rules of law:
(1) The trial court loses jurisdiction to pass upon a motion for a new trial sixty days from and after service on the moving party of written notice of entry of judgment. (§ 660, Code Civ.Proc.)
(2) If notice of entry of judgment has not been served, then the trial court loses jurisdiction to pass upon a motion for a new trial sixty days after the date of the filing by the moving party of his notice of intention to move for a new trial. (§ 660, Code Civ.Proc.)
(3) A notice of entry of judgment which erroneously states the date of entry of judgment is a nullity and does not set in motion the sixty-day period in which the court has jurisdiction under section 660 of the Code of Civil Procedure to grant a motion for a new trial. (Lauritzen v. H. L. Judell & Co., 109 Cal.App. 168, 169, 292 P. 536.)
(4) If a motion for a new trial is granted and becomes final, the effect of such order is to vacate and set aside the judgment theretofore entered. (Hatfield v. Levy Bros., 18 Cal.2d 798, 807 et seq., 117 P.2d 841.)
(5) An order made denying a motion to strike a notice of entry of judgment is not an appealable order under section 963 of the Code of Civil Procedure, since such order does not affect in any manner or bear any relation to the judgment either by way of enforcing or staying its execution. (Williams v. Superior Court, 14 Cal.2d 656, 666, 96 P.2d 334.)
Applying the foregoing rules to the facts of the instant case it is conceded that the notice of entry of judgment was defective in not stating the date upon which the judgment was in fact entered. Therefore, it did not commence the running of the sixty-day period within which the trial court had jurisdiction to pass upon a motion for a new trial. The sixty-day period commenced to run January 21, 1942, the date defendant filed its notice of intention to move for a new trial. Thus the trial court’s jurisdiction to grant a motion for a new trial expired March 21, 1942, and, since the motion for a new trial was granted March 19, 1942, it was granted at a period when the trial court had jurisdiction to so act.
Since the order granting a motion for a new trial was allowed to become final, the judgment as to which it was directed was vacated and became a nullity, and, since it was a nullity, there was no judgment from which defendant could appeal. Further, defendant is not estopped to contend that notice of entry of judgment was not effective by failing to appeal from the order denying his motion to strike such notice, since such order was nonappealable.
For the foregoing reasons:
(1) The motion for diminution of the record is granted, and
(2) The attempted appeal is dismissed.
MOORE, P. J., and W. J. WOOD, J., concurred.