Hoover v. Sweitzer

Annotate this Case
[Civ. No. 12318. Second Appellate District, Division One. August 31, 1939.]

EBER L. HOOVER, Appellant, v. MARIE E. SWEITZER et al., Respondents.

COUNSEL

Wm. J. F. Brown for Appellant.

Thornton, Menzies & Taylor for Respondents.

OPINION

York, P. J.

Respondents have moved this court to dismiss the within appeal upon the ground that appellant has failed to file his notice of appeal within the time prescribed by section 939 of the Code of Civil Procedure, i. e., within sixty days from the date of the entry of the judgment or order appealed from.

According to the certificate of the clerk of the Superior Court of Los Angeles County attached to the notice of motion to dismiss, it appears that the trial court granted respondents' motion for a nonsuit in the instant action which is one for damages for personal injuries, and that on May 22, 1939, appellant filed his notice of appeal from such order of nonsuit which was entered on March 22, 1939.

[1] "The time in which any act provided by law is to be done is computed by excluding the first day and including the last, unless the last day is a holiday, and then it [34 Cal. App. 2d 442] is also excluded." (Sec. 12, Code Civ. Proc.) "Holidays within the meaning of this code are every Sunday and such other days as are specified or provided for as holidays in the Political Code of the state of California." (Sec. 10, Code Civ. Proc.)

Excluding March 22d and counting forward, the sixtieth day thereafter fell upon May 21st, which was a Sunday. Therefore, the notice of appeal which was filed on May 22d was within the period of time specified by section 939, supra.

The motion to dismiss appeal is denied.

Doran, J., and White, J., concurred.