ADAMS v. TALBOTT DUNGAN INTERVENER (1941)

Following the decision herein appellant associated new counsel and has filed a petition for a rehearing which changes the entire complexion of the case as heretofore presented. A judgment was entered on June 19, 1939. On October 17, 1939, appellant filed a motion with respect to conditional parts of this judgment which was denied on October 23rd. On November 9th she gave notice of appeal “from the judgment”. She now states that the reason why she used the word “judgment” is plain; that she “construed the judgment of June 19th, to be interlocutory. As a corollary she believed that the court's action of October 23rd was the entry of a final judgment. It is from this that she intended to appeal.”

On October 10, 1939, appellant filed her final account as trustee in which she stated that the judgment of June 19th had become final. This account was settled on October 16th and on the day following she gave notice of motion to quiet her title to the property described in the judgment of June 19th. An order was entered on October 23rd denying this motion and directing the appellant to reconvey to respondent upon his payment of the sums called for in the judgment. On November 9th appellant gave notice of appeal “from the judgment * * * and from the whole of said judgment”, and his notice to the clerk to prepare a transcript under section 953a of the Code of Civil Procedure was of the same form and substance, without any indication that the record was to be made upon the matters relating to the order of October 23rd. On November 11th respondent gave notice of motion to strike the notice of appeal and to terminate proceedings for a record. This motion was based upon the single ground that the time for appeal had expired. This motion was granted on December 15th by an order reciting that the judgment of June 19th was final and “that the time for appeal from said judgment has expired.” On December 22nd appellant filed notice of motion to vacate the latter order upon the sole ground that the court was without jurisdiction to dismiss the appeal, and again without any indication that she intended to appeal from the order of October 23rd.

The appeal herein was taken from the order of December 15th above noted. The appellant stated and argued two points, whether the original judgment was final or interlocutory, and whether the trial court had jurisdiction to dismiss the appeal even if notice had not been given in due time. No suggestion was made at any stage of the proceedings that the appeal was intended to be directed to the order of October 23rd. The trial court, the clerk, and counsel for respondent were all led to believe that the notice was directed to the judgment of June 21st, and counsel then acting for the appellant prosecuted his appeal in this court upon the same assumption.

There is no controversy here over the use of the words “judgment” and “order”. At the time when the motion to terminate the proceedings on the appeal from the judgment was made, heard, and granted, the time for notice of appeal from the order of October 23rd had not expired. If the appellant had then desired to appeal from that order she had ample time to do so. If she had indicated to the trial court and opposing counsel that the notice given was intended to reach such order the proceedings may not have been dismissed.

The rules of law now presented are two, that a point first raised by appellant on a petition for rehearing should not be considered when it is based upon a state of facts contrary to an assumption entertained by the trial court as well as by the parties throughout the trial; I Cal.Jur.Ten Year Supp., p. 312; and that, though notices of appeal are not to be strictly construed unless the misdescription or error has misled the respondent, where it appears that the “misdescription” was deliberate, intentional and did mislead, the appellant should be held to his notice. I Cal.Jur.Ten Year Supp., p. 336; Dimity v. Dixon, 74 Cal.App. 714, 718, 241 P. 905.

The petition for a rehearing is denied.

PER CURIAM.