Taliaferro v. Davis

E. A. TALIAFERRO, Cross-complainant and Appellant, v. DOROTHY DAVIS, Cross-defendant and Respondent.

COUNSEL

E. A. Taliaferro, in pro. per., for Cross-complainant and Appellant.

Frisbie & Hoogs and W. H. Hoogs for Cross-defendant and Respondent. [217 Cal. App. 2d 216]

OPINION

DRAPER, P. J.

[1] Cross-complainant appeals from an order striking his cross- complaint as to respondent. Memorandum decision announced grant of the motion and directed respondent's counsel to prepare formal order. That order was dated and filed December 20, 1961.

Appellant had 60 days within which to file his notice of appeal (Rules on Appeal, rule 2(a) fn. *) [2] That time ran from filing of the order (id., rule 2(b) (2), (4) fn. **). [3] The first day of the 60 was December 21 (O'Donnell v. City & County of San Francisco, 147 Cal. App. 2d 63, 66 [304 P.2d 852]). The sixtieth day thus was February 18, 1962. Since that date fell on Sunday, the notice would be timely if filed Monday, February 19 (Code Civ. Proc., §§ 12, 12a). Appellant did not file it until Tuesday, February 20. [4] The time limit for filing this notice is jurisdictional (In re Del Campo, 55 Cal. 2d 816, 817 [13 Cal. Rptr. 192, 361 P.2d 912]). This court has no discretion, but must dismiss the appeal on its own motion (Langan v. Langan, 89 Cal. 186, 195 [26 P. 764]; and see Estate of Hanley, 23 Cal. 2d 120, 123 [142 P.2d 423, 149 A.L.R. 1250]).

Appeal dismissed.

Salsman, J., and Devine, J., concurred.

FN *. Now California Rules of Court, rule 2(a).

FN **. Now California Rules of Court, rule 2(b) (2), (4).