Fotheringham v. Moore

California Court of Appeal

Fotheringham v. Moore

241 P. 280, 74 Cal. App. 562, 1925 Cal. App. LEXIS 139

CourtCalifornia Court of Appeal

DecidedOctober 14, 1925

DocketDocket No. 5141.

StatusPublished

This text of 241 P. 280 (Fotheringham v. Moore) 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

Fotheringham v. Moore, 241 P. 280, 74 Cal. App. 562, 1925 Cal. App. LEXIS 139 (Cal. Ct. App. 1925).

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Opinion

CONREY, P. J.

This case came before the court on motion to dismiss plaintiff’s appeal from the order denying his motion for a new trial. As the purported appeal is not taken -from an appealable order, of course it must be dismissed. At the hearing of the motion appellant attempted to show that the notice of appeal was intended to be a notice of appeal from the judgment; and that by inadvertence and excusable neglect, and a resulting clerical error, the notice failed to specify the judgment as the subject of appeal. Thereupon respondent, at said hearing of the motion, waived notice of application for relief from the default resulting from failure to include an appeal from the judgment in said notice of appeal, and consented that the application for relief be heard forthwith. The matter was then submitted on affidavits.

Let it be assumed that upon sufficient showing of facts in excuse of the plaintiff’s error, this court could grant relief to plaintiff from the consequences of the stated error in his notice of appeal. (See Yolo Water and Power Co. v. Edmands, 45 Cal. App. 410, 414 [187 Pac. 755].) Plaintiff’s application for relief rests upon the affidavit of the secretary of the firm of attorneys who represented plaintiff in the action. She says that Mr. Collings, of said firm, instructed her to prepare “said notice of appeal,” and that by her error, inadvertence and mistake she worded said notice to the effect that said appeal was from the order instead of from the judgment of the court. She does not in direct terms assert that Mr. Collings instructed her to prepare a notice of appeal from the judgment. After considering said affidavit, together with the counter-affidavits *564 filed on behalf of defendant, we think that plaintiff is not entitled to the demanded relief.

Plaintiff’s application is denied and the appeal is dismissed.

Houser, J., and Curtis, J., concurred.

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CONREY, P. J.

This case came before the court on motion to dismiss plaintiff’s appeal from the order denying his motion for a new trial. As the purported appeal is not taken -from an appealable order, of course it must be dismissed. At the hearing of the motion appellant attempted to show that the notice of appeal was intended to be a notice of appeal from the judgment; and that by inadvertence and excusable neglect, and a resulting clerical error, the notice failed to specify the judgment as the subject of appeal. Thereupon respondent, at said hearing of the motion, waived notice of application for relief from the default resulting from failure to include an appeal from the judgment in said notice of appeal, and consented that the application for relief be heard forthwith. The matter was then submitted on affidavits.

Let it be assumed that upon sufficient showing of facts in excuse of the plaintiff’s error, this court could grant relief to plaintiff from the consequences of the stated error in his notice of appeal. (See Yolo Water and Power Co. v. Edmands, 45 Cal. App. 410, 414 [187 Pac. 755].) Plaintiff’s application for relief rests upon the affidavit of the secretary of the firm of attorneys who represented plaintiff in the action. She says that Mr. Collings, of said firm, instructed her to prepare “said notice of appeal,” and that by her error, inadvertence and mistake she worded said notice to the effect that said appeal was from the order instead of from the judgment of the court. She does not in direct terms assert that Mr. Collings instructed her to prepare a notice of appeal from the judgment. After considering said affidavit, together with the counter-affidavits *564 filed on behalf of defendant, we think that plaintiff is not entitled to the demanded relief.

Plaintiff’s application is denied and the appeal is dismissed.

Houser, J., and Curtis, J., concurred.

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241 P. 280, 74 Cal. App. 562, 1925 Cal. App. LEXIS 139, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fotheringham-v-moore-calctapp-1925.

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