Coon v. Grand Lodge of the United Order of Honor of California

Majority

p. 354

[No. 11377.

Department One.

May 31, 1888.]

CHARLES D. COON, Appellant, v. GRAND LODGE OF THE UNITED ORDER OF HONOR OF CALIFORNIA, Respondent.

Headnote

Appeal—Actual Entby of Judgment — Entby Nuno pbo Tuno__The rights of parties in respect to an appeal are determined by the date of the actual entry of the judgment, and they cannot he affected hy the entry of the judgment nunc pro tunc as of a prior date.

Id. —Premature Appeal. — An appeal from a judgment taken prior to the date of its actual entry is premature and will he dismissed. -

Appeal from a judgment of the Superior Court of the. city and county of San Francisco.

Motion to dismiss appeal. The facts are stated in the opinion of the court.

J. G. Severance, for Appellant.

R. Percy Wright, for Respondent.

Judgement was entered for defendant on demurrer.

The motion to dismiss tlie appeal herein on the ground that it was prematurely taken must be granted. The notice of appeal was filed and served on November 2, 1885. The judgment was not entered until December 10, 1885. It is not dated, but it is indorsed, “Judgment recorded December 10, 1885, nunc pro tunc as of October 30,1885.” The judgment is not signed by the judge, and there is no order directing the entry thereof as of October 30, 1885; but if it be presumed that such an order was made, it would not avail the appellant.

The rights of the parties in .respect to an appealajje determined by the date of the actual entry of ment, and they cannot be affected by the cn^B|Jg|SS judgment nunc pro tunc as of prior date. T»Eíw*-hh ww* appeal begins to run from the time of the, (Code Civ. Proc., sec.-939; In re Fifteenth

p. 355

sion, 54 Cal. 179 ; Rubber Co. v. Goodyear, . 6 Wall. 155 ; 2 Hayne on New Trial and Appeal, sec. 204.)

The appeal is dismissed.

McKinstby, J., and Seabls, C. J., concurred.

Cases cited

In re Fifteenth Ave. Extension 54 Cal. 179 Cal. p. 355