McHugh v. Adkins

California Supreme Court

McHugh v. Adkins

49 P. 2, 117 Cal. 228, 1897 Cal. LEXIS 645

CourtCalifornia Supreme Court

DecidedJune 9, 1897

DocketS. F. No. 985

StatusPublished

Cited by6 cases

This text of 49 P. 2 (McHugh v. Adkins) is published on Counsel Stack Legal Research, covering California Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

McHugh v. Adkins, 49 P. 2, 117 Cal. 228, 1897 Cal. LEXIS 645 (Cal. 1897).

Pincite

Opinion

The Court.

Motion to dismiss the appeal.

The findings of fact and conclusions of law made upon the trial of the above action were filed with the clerk May 1, 1897, and judgment ordered in favor of the plaintiff and against the defendants and intervenor. On the same day the defendants and intervenor filed notices of appeal from this judgment, and also perfected their appeals. Judgment was not entered of record until May 3d. A motion is now made by the plaintiff to dismiss the appeal, upon the ground that it was taken prematurely.

At the time this notice of appeal was given, section 939 of the Code of Civil Procedure provided that an appeal from a judgment might be taken within one year “after the entry of judgment,” and it has been repeatedly held that an appeal taken before the judgment is entered of record, is premature, and must be dismissed. (Home for Inebriates v. Kaplan, 84 Cal. 488, [229]*229and cases there cited.) The further provision in the same section, that “ an exception to the decision or verdict on the ground that it is not supported by the evidence, cannot be reviewed on an appeal from the judgment, unless the appeal is taken within sixty days after the rendition of the judgment,” does not change the time within which the appeal must be taken, but is a limitation upon the matters that may be considered on the appeal. This court has no jurisdiction of an appeal from a judgment taken before the judgment has been entered of record, and, while it may review any errors of law committed at the trial, when the appeal has been properly taken, its jurisdiction to review the evidence is limited to such appeals as are taken within sixty days after the rendition of the judgment.

The appeals are dismissed.

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The Court.

Motion to dismiss the appeal.

The findings of fact and conclusions of law made upon the trial of the above action were filed with the clerk May 1, 1897, and judgment ordered in favor of the plaintiff and against the defendants and intervenor. On the same day the defendants and intervenor filed notices of appeal from this judgment, and also perfected their appeals. Judgment was not entered of record until May 3d. A motion is now made by the plaintiff to dismiss the appeal, upon the ground that it was taken prematurely.

At the time this notice of appeal was given, section 939 of the Code of Civil Procedure provided that an appeal from a judgment might be taken within one year “after the entry of judgment,” and it has been repeatedly held that an appeal taken before the judgment is entered of record, is premature, and must be dismissed. (Home for Inebriates v. Kaplan, 84 Cal. 488, [229]*229and cases there cited.) The further provision in the same section, that “ an exception to the decision or verdict on the ground that it is not supported by the evidence, cannot be reviewed on an appeal from the judgment, unless the appeal is taken within sixty days after the rendition of the judgment,” does not change the time within which the appeal must be taken, but is a limitation upon the matters that may be considered on the appeal. This court has no jurisdiction of an appeal from a judgment taken before the judgment has been entered of record, and, while it may review any errors of law committed at the trial, when the appeal has been properly taken, its jurisdiction to review the evidence is limited to such appeals as are taken within sixty days after the rendition of the judgment.

The appeals are dismissed.

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Bluebook (online)

49 P. 2, 117 Cal. 228, 1897 Cal. LEXIS 645, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mchugh-v-adkins-cal-1897.

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