SOCOL v. KING

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

SOCOL v. KING.

Civ. 16840.

Decided: February 01, 1949

Porter C. Blackburn and Shelby L. Chambers, both of Los Angeles, for appellant. Chas. T. Rippy, of Torrance, for respondent.

Respondent has moved to dismiss plaintiff's appeals: (1) from the judgment; (2) from an order dated September 13, 1948, denying plaintiff's motion to set aside and vacate the judgment and to enter a different judgment; (3) from the order denying plaintiff's “notice of intention to move for an order to vacate and set aside said judgment”; (4) from the order “alleged to have been made by operation of law denying plaintiff's motion to set aside and vacate said judgment.” The motion is made on the ground that the appeals were not taken within the time allowed by the rules on appeal. 22 Cal.2d 1. The record has not been filed. The facts with reference to the appeals and to the orders from which they were taken are gleaned from the affidavits of the respective parties and from the clerk's certificate.

The following events all occurring in 1948 are relevant to the motion to dismiss: On April 28 judgment in favor of defendant was entered; on May 17 plaintiff filed a notice of intention to move for an order to vacate the judgment and to enter a different judgment; on June 16 she filed a notice of motion to vacate the judgment and to enter a different judgment; on September 13 the court filed a written order denying the last mentioned motion (the clerk certifies that no minute order ruling on the motion was entered); on September 24 plaintiff filed notice of appeal from the judgment; on October 19 she filed a notice of appeal from the order of September 13 denying the motion to set aside the judgment.

The 120th day after April 28, the date of entry of judgment, was August 26 which was the last day on which plaintiff was permitted to file her notice of appeal from the judgment, hence the notice filed on September 24 was too late.

Appellant contends that her time for appealing from the judgment did not expire on the 120th day after entry of the judgment but that the end of the 120–day period marked the beginning of an additional 30–day period within which she might file her notice. Such contention is contrary to the plain and unambiguous language of Rule 3(b)1 which permits notice to be filed within 30 days after denial of the motion to vacate or 120 days after entry of judgment, whichever shall be less. Rule 3(a) provides that if a motion for new trial is denied the time for filing the notice of appeal from the judgment is extended until 30 days after denial by the court or by operation of law. No such extension of time is found in Rule 3(b).

The motion to vacate a judgment and to enter a different judgment has no connection with an appeal from a judgment and in no manner affects the appeal. The two remedies are distinct from and independent of each other. Modoc Co–Operative Ass'n v. Porter, 11 Cal.App. 270, 274, 104 P. 710; Patch v. Miller, 125 Cal. 240, 241, 57 P. 986. Such a motion is, like a motion for a new trial, independent of and collateral to the proceedings wherein the judgment was rendered. After an appeal from a judgment the superior court retains jurisdiction to determine all issues collateral to the judgment. City of Vallejo v. Superior Court, 199 Cal. 408, 419, 249 P. 1084, 48 A.L.R. 610. Furthermore, the pendency of a motion to set aside a judgment and to enter a different judgment on the findings of fact does not extend the time within which an appeal from the judgment must be taken. Spotton v. Superior Court, 177 Cal. 719, 720, 171 P. 801.

The cases cited by plaintiff need not be considered since (1) they refer to the extension of time for appeal when a notice of intention to move for a new trial has been given as provided in former section 939 of the Code of Civil Procedure, the provisions of which are now embodied in Rule 3(a) of Rules on Appeal, and (2) no notice of intention was filed.

Appellant also maintains that if her time for appeal from the judgment is limited to 120 days after entry of judgment she would be deprived of her right of appeal either (1) by the entry of an order denying her motion on the 120th day or (2) by the denial of the motion on that day by operation of law. Her contention is that if she awaited the expiration of the 120th day she could not appeal thereafter and that the filing of a notice of appeal from the judgment prior to the order denying her motion would transfer jurisdiction of the case to the appellate court and deprive the superior court of the power to pass on the motion. Her contention is untenable. The trial court would have jurisdiction to rule on the motion within the time allowed by the rule notwithstanding the notice of appeal from the judgment.

The appeal from the order of September 13 purporting to deny plaintiff's motion to set aside and vacate the judgment and to enter a different judgment is fruitless since the motion had been denied by operation of law on August 26 and the order of September 13 was ineffectual and void.

The purported appeal from the “notice of intention” is not an appeal from an order of the court.

The order made by operation of law denying plaintiff's motion to set aside and vacate the judgment is a nonappealable order. An order granting such a motion may be appealed from, Code Civ.Proc. sec. 663a, but, there is no appeal from an order denying it. Modoc Co–Operative Ass'n v. Porter, supra.

Appeals dismissed.

FOOTNOTES

1.  Rule 3(b) “When a motion to vacate a judgment or to vacate a judgment and enter another and different judgment is made by any party on any ground within 60 days after entry of judgment, (1) if the motion is denied or not decided by the superior court within 120 days after entry of the judgment, the time for filing the notice of appeal from the judgment is extended for all parties until 30 days after entry of the order denying the motion to vacate or 120 days after entry of the judgment, whichever shall be less; (2) if the motion is granted and an appeal is taken from the order granting it, the respondent, within 20 days after mailing of notification by the clerk of such appeal, may serve and file notice of appeal from the judgment as originally entered, and on that appeal may present any question which he might have presented on an appeal from the judgment as originally entered.”

WILSON, Justice.

MOORE, P.J., and McCOMB, J., concur.