DREESEN v. RICHARDS

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District Court of Appeal, Fourth District, California.

DREESEN v. RICHARDS.*

Civ. 2084

Decided: September 21, 1938

Wayne Compton and William H. Wylie, both of San Diego, for appellant. Joseph S. Campbell, of San Diego, for respondent.

The respondent brought this action to obtain a money judgment against appellant, based upon a judgment obtained against appellant in the state of Pennsylvania.

Appellant's counsel states that “The material question presented by this appeal is one of fact: Has respondent produced and introduced in evidence, at the trial of case at bar, an authenticated copy of the judgment alleged to have been rendered by the Court” against the appellant?

At the outset we are confronted with a question of the jurisdiction of this court to review the judgment in this case. The judgment was entered February 2, 1938. No notice of the entry of judgment was ever given, nor was a motion for a new trial made. On April 20, 1938, more than sixty days after the entry of the judgment, the appellant filed her notice of appeal. While the respondent has not moved for a dismissal of the appeal, yet if the court is without jurisdiction to entertain the appeal, it is the duty of the court to raise and pass upon the jurisdictional question. It is said in Harpold v. Superior Court, 58 Cal.App. 629, 631, 209 P. 219, 220, that: “It is a rule of general application that, when an appellate court has not obtained jurisdiction of an alleged appeal, such court will dismiss such purported appeals of its own motion. 4 C.J. 589, § 2402. Whether jurisdiction has attached is determined by an inspection of the record.”

In Re Dutton, 119 Cal.App. 447, 6 P.2d 558, it is held that “if the record shows that no jurisdiction exists to hear the appeal, it must be dismissed.” [[[[Page 559.] In the case of Lawson v. Guild, 215 Cal. 378, 380, 10 P.2d 459, the court, in considering the question, said:

“Plaintiff filed his notice of appeal on December 5, 1931, which was more than sixty days after the entry of judgment, but within thirty days of the denial of the motion for new trial.

“Section 939 of the Code of Civil Procedure provides that an appeal, to be timely, must be taken within sixty days after entry of the judgment or order which it is sought to have reviewed. The statute limiting the time in which an appeal may be taken is jurisdictional and mandatory. If the appeal is not taken within the time allowed by law, an appellate court has no power to entertain it. Bley v. Board of Dental Examiners, 101 Cal.App. 666, 669, 282 P. 19. In the instant case the judgment was entered approximately five and one-half months prior to the filing of the notice of appeal. The appeal was taken too late and must therefore be dismissed.”

The same question has been before this court in the following cases, with like results: Fruit Supply Co. v. Title Guarantee & Trust Co., 127 Cal.App. 91, 92, 15 P.2d 194 wherein it is said: “It it thus made to appear that the notice of appeal was not filed until 119 days after entry of the judgment, and that it was not filed within 60 days after entry of the orders from which an appeal is sought to be taken. The appeal was not, therefore, taken in time.” Franceschini v. Solis; 132 Cal.App. 601, 23 P.2d 50; Confar v. Whelan, 8 Cal.App.2d 101, 46 P.2d 991, wherein it is said [[[[page 992]: “The appeal not having been taken within that period [sixty days from the entry of the judgment], the court has no jurisdiction to consider the appeal on the merits.”

The appeal from the judgment is hereby dismissed.

LEONARD, Justice pro tem.

We concur: BARNARD, P.J.; MARKS, J.