Pflug v. Brown — 57 Cal. App. 312

Majority

p. 312

[Civ. No. 4249.

First Appellate District, Division Two.

April 11, 1922.]

PAULINE PFLUG, Respondent, v. JULIUS B. BROWN, Appellant.

Headnote

[1] Appeal—Judgment—Denial of New Trial-Entry of Order— Time—Dismissal.—An appeal from a judgment will be dismissed where the notice of appeal is not filed until more than thirty days after entry in the minutes of the trial court of the order denying a motion for a new trial, regardless of the time of the entry of such order in the register of actions.

MOTION to dismiss an appeal from a judgment of the Superior Court of the City and County of San Francisco. James M. Troutt, Judge. Motion granted.

The facts are stated in the opinion of the court.

Klein, Clarke & Gerlack for Appellant.

Wm. J. Hayes and John M. Platt for Respondent.

This is a motion to dismiss an appeal upon the ground that it was not taken within the time prescribed by section 939 of the Code of Civil Procedure. Said motion is supported by a certificate of the clerk of the supe

p. 313

rior court, showing that a judgment herein was rendered in favor of plaintiff: on November 10, 1921; that on November 17, 1921, defendant served and filed a notice of intention to move for a new trial; that on November 25, 1921, said defendant filed a bond on appeal in due form; that said motion for a new trial was heard on January 6, 1922, and denied; that the following entry appears in the minutes of said court under date of January 6, 1922: “No. 113,527. Pauline Pflug v. Julius B. Brown. In this action, the motion for a new trial came on regularly this day to be heard, and after argument by counsel for respective parties, it is ordered that said motion be, and the same is hereby denied. ’ ’

The certificate of said clerk further states that on February 27, 1922, defendant filed a written notice of appeal from said judgment.

[1] It is apparent from-the foregoing recital of facts that the notice of appeal was filed too late, having been filed more than thirty days “after entry in the trial court of the order determining” the motion for a new trial.

Upon the hearing before this court of the motion to dismiss the appeal, appellant opposed the same urging that there was no showing made by respondent that the notice of appeal had been filed more than thirty days after the entry in the register of actions of the denial of said motion for a new trial. It was contended that section 939 of the Code of Civil Procedure contemplates such an entry in the register of actions and not in the minutes of the court. We are cited to no authorities in support of this position and we think it is without merit.

Upon the face of the record presented to this court, the appeal was not taken in time. The motion to dismiss the appeal is granted.

Nourse, J., and Sturtevant, J., concurred.