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District Court of Appeal, Second District, Division 2, California.


Civ. 13676.

Decided: October 05, 1942

Laurence B. Martin, of Los Angeles, for appellant. F. C. Stevens, of Los Angeles, for respondent.

The above entitled matter having come on for hearing upon respondents' motion to dismiss the appeal and it appearing that the notice of appeal was filed on the sixty–first day after notice of entry of the order approving the First Account Current of the executrix and that the date of entry of such order to wit, December 17, 1941, (instead of December 12, 1941), contained in the notice served by respondent was not wilfully made for the purpose of deceiving appellant (see Moyle v. Landers, 78 Cal. 99, 20 P. 241, 12 Am.St.Rep. 22) and that the time of filing of the notice of appeal is jurisdictional and that neither stipulation nor other acts of the parties can confer the right of appeal once lost by expiration of the statutory time (Estate of Brewer, 156 Cal. 89, 103 P. 486; Irving v. Sheetz, 26 Cal.App.2d 751, 80 P.2d 502; Estate of Pearsons, 119 Cal. 27, 50 P. 929; Lawson v. Guild, 215 Cal. 378, 10 P.2d 459); now, therefore,

It is ordered and adjudged that the motion to dismiss the appeal be and it is hereby granted and the appeal is dismissed.

I dissent. In my opinion the actions of respondent in serving written notice containing the false statement that the order appealed from had been entered on December 17, 1941, constituted fraud (Civ.Code, § 1710, subd. 2) and made applicable the rule enunciated in Moyle v. Landers, 78 Cal. 99, 20 P. 241, 245, 12 Am.St.Rep. 22, where it was held that one who fraudulently concealed the death of a party for the purpose of defeating an appeal was “estopped to attack the notice given, or to question the jurisdiction of the court.” The rule of Moyle v. Landers has been referred to impliedly with approval, in Churchill v. Flournoy, 127 Cal. 355, at page 359, 59 P. 791, and in Deiter v. Kiser, 158 Cal. 259, at page 263, 110 P. 921.


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