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District Court of Appeal, Second District, Division 3, California.


Civ. 16509.

Decided: July 29, 1948

H. E. Ehrlich, of Beverly Hills, and Simon Miller, of Long Beach, for appellant. Bautzer & Silbert, of Hollywood, for respondent.

The matter before us is a motion to dismiss the appeal from the judgment upon the ground that the notice of appeal was filed more than thirty days after denial of a motion for new trial, and more than ninety days after entry of the judgment. The following facts are presented in the form of a stipulation: August 14, 1947, judgment entered in favor of defendant; August 22, 1947, notice of entry of judgment served and filed; August 29, 1947, notice of intention to move for new trial filed; October 10, 1947, motion heard and denied by oral pronouncement of the court (entered as hereinafter stated); October 23, 1947, entry made in permanent records, main office of clerk, dated October 10; November 15, notice of appeal filed. The action was tried and the motion was heard in the Santa Monica branch of the superior court. In Los Angeles county it is the usual practice for the clerk of each department to list on a ‘trial calendar,’ in duplicate, the matters set for the day, and to write thereon the orders as announced by the court. On October 10, the clerk wrote under the proper heading in the present case, ‘Mo. denied. Notice waiver.’ The prevailing practice was then followed; the original of the trial calendar was retained by the department clerk and placed in a loose leaf binder, ten inches by thirteen inches in size. This book contains all entries of the department clerk relating to proceedings of the court and these records are kept by the department clerk in chronological order for such time as the head clerk may direct. At the present time, the records are kept in the department for two years. A carbon copy of the trial calendar is sent to the main office of the clerk on the day after it is written, except that entries made on Friday are not sent to the main office until the following Monday (so far, at least, as the Santa Monica branch court is concerned). In the main office entry is made from the department minutes in the register of actions, and the clerk's minutes are copied in a book captioned ‘minutes and orders.’ These books contain a record of minutes of the several departments of the court and are permanent. The copies received from the department clerks are not retained after they have been copied. There is usually a delay of a number of days between the receipt of the minutes from the department clerk and the completion of the copying process in the main office. The question here is whether the thirty days after denial of the motion for new trial within which an appeal could be taken commenced to run on October 10, when the order was pronounced by the court, or on October 23, when the department minutes were copied into the record books in the main office. The notice was filed thirty-six days after October 10, or ninety-three days after the entry of judgment.

Under Rule 2(a), Rules on Appeal, notice of appeal had to be filed within sixty days from the date of entry of judgment, with the exception stated in Rule 3(a) that ‘when a valid notice of intention to move for new trial is served and filed by any party within 60 days after the entry of judgment, (1) if the motion is denied, the time for filing the notice of appeal from the judgment is extended for all parties until 30 days after denial of the motion by order of court or by operation of law,’ etc. This rule replaces, in part, former section 939, Code of Civil Procedure, repealed in 1945, which read, in part, ‘if proceedings on motion for a new trial are pending, the time for appeal from the judgment shall not expire until thirty days after entry in the trial court of the order determining such motion for a new trial, or other determination in the trial court of the proceedings upon such motion.’ Appellant's argument is that the phrase of Rule 3(a) ‘after denial of the motion by order of court or by operation of law’ means the same as the phrase of former section 939, ‘after entry in the trial court of the order determining such motion for a new trial, or other termination in the trial court of the proceedings upon such motion.’ Appellant cites Berman v. Blankenship Motors, 140 Cal.App. 134, 135, 34 P.2d 1035, in which the court held that section 939 meant exactly what it said, namely, that the time did not commence to run until the order was actually entered in the minutes of the court, and further, that an entry did not take place on the day the order was announced, when the clerk made a notation in his ‘rough minutes,’ but that the actual entry was the transference of the notation on the following day to the ‘regular minutes' of the court. From this holding appellant argues that in the present case there was no entry of the order on October 10, nor until October 23. He then maintains that it is the actual entry of the order that starts the time running.

We find it unnecessary to decide whether the entries in the department clerk's records made from day to day under the practice described above, constitute entries in the minutes of the court as of the day they are made. It may be observed, however, that these minutes purport to be complete records, rather than mere notes, since they are intended to contain all the matter that is copied into the permanent records in the main clerk's office. For the time they are kept in the departments, one looking for a record of the proceedings would find the same matter entered in both places. Upon the other hand, the department records are not strictly permanent, since they are eventually destroyed and, in addition, are in loose leaf form, which is not the usual or accepted form of permanent public records. We would examine the nature of these records further to determine whether the department minutes are the original minutes of the court, were it not for the fact that we are satisfied that the actual entry in the minutes of an order pronounced by the court denying a motion for new trial is not the act which sets in motion the extended time for appeal.

Rule 3(a), quoted above, is not the same as former section 939, either in terms or meaning. Under the code section it was the entry of the order in the minutes that initiated the thirty-day period. Under Rule 3(a), it is the denial of the motion by order of court or by operation of law that starts the time running. It is idle to argue that this change in terms was intended to effect no change of meaning. The pronouncement of an order by the court and the entry of the order in the minutes are separate and distinct acts. When the law specifies one it does not mean the other. There was a purpose in specifying entry of the order in section 939, and certainly no want of purpose in its omission from Rule 3(a). We can see no good reason for the revision unless it was to change the law as declared and applied in 140 Cal.App. 134, 34 P.2d 1035.

The final question is whether the pronouncement by the judge in open court that a motion for new trial is denied is immediately effective as an order of court within the meaning of Rule 3(a), or becomes such order only by entry in the minutes. It has been held repeatedly that ‘the action of the court does not depend upon the entry of its orders by the clerk, but upon the fact that the orders have been made, and, whenever it is shown that an order has been made by the court, it is as effective as if it had been entered of record by the clerk.’ Niles v. Edwards, 95 Cal. 41, 47, 30 P. 134, 136; Von Schmidt v. Widber, 99 Cal. 511, 34 P. 109; Fresno Estate Co. v. Fiske, 172 Cal. 583, 597, 157 P. 1127; Barbee v. Young, 79 Cal.App. 119, 249 P. 15; Estate of McNamara, 181 Cal. 82, 183 P. 552, 7 A.L.R. 313; Sarkisian v. Superior Court, 129 Cal.App. 342, 18 P.2d 739; Willis v. Superior Court, 214 Cal. 603, 7 P.2d 303. Appellant cites Brownell v. Superior Court, 157 Cal. 703, 109 P. 91, as announcing a contrary rule. The same question was not there involved. This is pointed out on page 709 of 157 Cal., 109 P. 91, of the Brownell opinion and the case was also distinguished by the court in 172 Cal. 583, 598, 157 P. 1127, supra.

The notice of appeal was not filed in time; the appeal is dismissed.

SHINN, Acting Presiding Justice.

WOOD, J., and McCOMB, A. Assigned, concur.