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PAHLKA v. McCORMICK

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

PAHLKA et ux. v. McCORMICK.

Civ. 15603.

Decided: March 10, 1954

Robert H. Fouke, Robert A. Wertsch, John Alfred Davis, San Francisco, John D. Gallaher, San Francisco, of counsel, for appellant. John A. Putkey, San Francisco, for respondents.

Under the authority of Reeves v. Reeves, 34 Cal.2d 355, 209 P.2d 937, the appeal in this case must be dismissed.

The clerk's transcript shows that judgment in the action was entered on April 7, 1952. A motion for new trial was made and denied on June 4, 1952 and notice of appeal was filed on July 3, 1952.

The case was submitted to the court on an agreed statement of facts. There was therefore no trial of any issue of fact. It is reaffirmed in the Reeves case following a host of earlier decisions, that a new trial can only be granted where there has been a trial on issues of fact. Reeves v. Reeves, supra, 34 Cal.2d at pages 358–359, 209 P.2d at pages 938–939. Specifically where the case is submitted on an agreed statement of facts there can be no new trial granted because when the facts are all agreed upon there can be no issue of fact before the court for decision. Gregory v. Gregory, 102 Cal. 50, 36 P. 364, cited in the Reeves case; Quist v. Sandman, 154 Cal. 748, 99 P. 204.

Since no new trial court be granted in this case the motion for new trial was not a ‘valid motion’ within the meaning of Rules on Appeal, Rule 3(a) and did not extend the 60 day period after entry of judgment within which a notice of appeal may be filed under Rule 2(a). Reeves v. Reeves, supra, 34 Cal.2d at page 359, 209 P.2d at page 939.

Appeal dismissed.

DOOLING, Justice.

NOURSE, P. J., and KAUFMAN, J., concur.

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