Irving v. Sheetz

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[Civ. No. 11792. Second Appellate District, Division One. June 6, 1938.]

MARY IRVING, Appellant, v. JOHN A. SHEETZ, Jr., et al., Respondents.


Clarence C. Ward and Ross MacLeod for Appellant.

George H. Moore for Respondents.


The Court.

On June 3, 1938, we entered an order denying the motion to dismiss the appeal in the above-entitled cause. Upon reconsideration, we find that the record herein indicates that the judgment in the superior court was signed May 10, 1937, and entered by the clerk thereof on May 13th. No notice of entry of judgment was served upon the attorneys for the plaintiff until September 15, 1937. The notice of intention to move for a new trial was served and filed September 18th, and plaintiff's notice of appeal was not served or filed until December 17th, which was more than seven months after the entry of judgment.

[1] In the cases of Lawson v. Guild, 215 Cal. 378, 380 [10 PaCal.2d 459], and Kraft v. Briggs, 15 Cal. App. 2d 667 [59 PaCal.2d 1044], it is held that section 939 of the Code of Civil Procedure provides that an appeal, to be timely, must be taken within sixty days after the notice of entry of judgment or order which it is sought to have reviewed; that the statute limiting the time within which the appeal may be taken in jurisdictional and mandatory. It is also there held that service of the notice of entry of judgment is not necessary to start the time running within which an appeal may be taken.

For the foregoing reasons, and upon the authority of the cases aforesaid, it is ordered that the above-mentioned order of June 3d denying the motion to dismiss the appeal be vacated and set aside, and that the appeal from the judgment herein be, and the same is, hereby dismissed.