Adams v. Bates

California Court of Appeal

Adams v. Bates

287 P. 146, 105 Cal. App. 257, 1930 Cal. App. LEXIS 812

CourtCalifornia Court of Appeal

DecidedApril 15, 1930

DocketDocket No. 165.

StatusPublished

This text of 287 P. 146 (Adams v. Bates) is published on Counsel Stack Legal Research, covering California Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Adams v. Bates, 287 P. 146, 105 Cal. App. 257, 1930 Cal. App. LEXIS 812 (Cal. Ct. App. 1930).

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Opinion

MARKS, J.

On the seventh day of November, 1929, the court below rendered judgment sustaining respondent’s demurrer to appellant’s third amended complaint, without leave to amend. On that day judgment was rendered and entered in favor of respondent. No notice of entry of judgment was given to appellant. On February 3, 1930, appellant filed his notice of appeal. Respondent has moved this court to dismiss the appeal upon the ground that this notice was not given within sixty days after the entry of judgment. No motion for new trial was made.

Section 939 of the Code of Civil Procedure provides that an appeal must be taken by filing with the clerk of the court, in which the judgment or order appealed from is entered, a notice of appeal within sixty days from the entry of the judgment or order, if no motion for new trial is made. The time for filing the notice of appeal in this case expired on the twenty-eighth day of January, 1930, and therefore *258 the notice of appeal given was ineffectual. The code does not require a notice of entry of judgment to be given to start the running of the time within which an appeal from a judgment may be taken. (Schainman v. Kierce, 199 Cal. 249 [248 Pac. 905]; Cook v. Cook, 208 Cal. 501 [282 Pac. 385].)

It follows that the appeal must be dismissed, and it is so ordered.

Barnard, Acting P. J., and Owen, J., pro tem., concurred.

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MARKS, J.

On the seventh day of November, 1929, the court below rendered judgment sustaining respondent’s demurrer to appellant’s third amended complaint, without leave to amend. On that day judgment was rendered and entered in favor of respondent. No notice of entry of judgment was given to appellant. On February 3, 1930, appellant filed his notice of appeal. Respondent has moved this court to dismiss the appeal upon the ground that this notice was not given within sixty days after the entry of judgment. No motion for new trial was made.

Section 939 of the Code of Civil Procedure provides that an appeal must be taken by filing with the clerk of the court, in which the judgment or order appealed from is entered, a notice of appeal within sixty days from the entry of the judgment or order, if no motion for new trial is made. The time for filing the notice of appeal in this case expired on the twenty-eighth day of January, 1930, and therefore *258 the notice of appeal given was ineffectual. The code does not require a notice of entry of judgment to be given to start the running of the time within which an appeal from a judgment may be taken. (Schainman v. Kierce, 199 Cal. 249 [248 Pac. 905]; Cook v. Cook, 208 Cal. 501 [282 Pac. 385].)

It follows that the appeal must be dismissed, and it is so ordered.

Barnard, Acting P. J., and Owen, J., pro tem., concurred.

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Bluebook (online)

287 P. 146, 105 Cal. App. 257, 1930 Cal. App. LEXIS 812, Counsel Stack Legal Research, https://law.counselstack.com/opinion/adams-v-bates-calctapp-1930.

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