McCOLGAN v. LOHMANN NOWELL (1937)

This is a motion to dismiss an appeal. It is based on one ground, to wit, that the notice of appeal was not filed within sixty days from and after the entry of the judgment, and that it was not filed within sixty days from and after the date of the order granting the motion of the defendants and respondents herein for a nonsuit. It is supported by a certificate of the county clerk. Said certificate appears to enumerate, with one exception, each of the subjects required to be enumerated by rules V and VI of the Rules of the Supreme Court and District Courts of Appeal. The exception mentioned is with reference to proceedings for the settlement of a bill of exceptions or for a transcript under section 953a of the Code of Civil Procedure (as amended by St.1935, p. 1960). The defendants produced an affidavit to the effect that no such proceedings are pending. Neither party has shown any additional facts. From the showing made the following facts appear: 1937, March 3, order granting nonsuit and entered in minutes; May 11, notice of entry of judgment of nonsuit; May 21, notice of intention to move for new trial; July 10, order denying motion for new trial; July 12, notice of order denying motion for new trial served; July 20, notice of appeal from judgment or order granting nonsuit filed.

Going outside of the record the respondents quote the entry made by the clerk on March 3, 1937. Following his opponents outside of the record the plaintiff concedes that the entry was as follows: “Whereupon after hearing the arguments of respective counsel the court ordered that defendants' (naming them) motions for nonsuit be and the same are hereby granted.” No other entry purporting to be a judgment was made.

The defendants assert that on July 20, 1937, the plaintiff appealed from the order entered March 3, 1937; that no proceedings for a new trial were commenced until May 21, 1937; that the plaintiff was bound to appeal within sixty days if new trial proceedings were not pending; that no such proceedings were pending and therefore the notice of appeal from an order made March 3, 1937, came too late when filed July 20, 1937. Their argument is based on the fact that the order made on March 3, 1937, was by the clerk entered in his minutes and was also entered in the register of actions and they quote and rely on the provisions of section 581 of the Code of Civil Procedure (as amended by St.1935, p. 1954) which deal with dismissals and nonsuits. They point out that the order in question was made pursuant to subdivision 5 of said section. They then stress that part of the last paragraph which reads, “and the dismissals mentioned in subdivisions three, four, and five of this section, must be made by order of the court entered upon the minutes thereof * * * and are effective for all purposes when so entered; but the clerk * * * must note such orders in his register of actions in the case.” They then contend the order dated March 3, 1937, was the final judgment in the case from which the appeal should have been taken, as they claim within sixty days from its entry. The plaintiff replies that said language so quoted from section 581 of the Code of Civil Procedure is addressed to judgments of dismissal and not to judgments merely of nonsuit. The distinction is well founded. In 1851 the Legislature expressed in section 148 of the Practice Act the law providing for dismissals and nonsuits. That section was codified and in 1872 it became section 581 of the Code of Civil Procedure. Since 1851 the law as to dismissals has been amended several times. But as to nonsuits no amendment has been made. An examination of the section of the Practice Act and of the section of the Code of Civil Procedure just mentioned discloses no statement to the effect that an order of nonsuit is in effect a judgment. On a record, closely similar to the record in the instant case, in Kimple v. Conway, 69 Cal. 71, at page 72, 10 P. 189, 190, the court said: “There is no appeal allowed by law from an order of nonsuit, nor does the law allow an appeal from a judgment of nonsuit. If it should be urged that the judgment of nonsuit is the final judgment from which an appeal is allowed, the plain reply is that the transcript does not show that a final judgment has ever been entered. No appeal can be taken from a final judgment until it has been entered.” In Stebbins v. Larson, 4 Cal.App. 482, 88 P. 505, 506, the transcript showed an entry in the minutes as follows: “The defendant's motion for nonsuit is granted and judgment of nonsuit is ordered.” Speaking of the effect thereof the court said: “We find nothing in the transcript indicating that any final judgment was ever entered in the case, except as above quoted. The order quoted above does not purport to be, and is not in fact, a final judgment in the case, and under the law no appeal is permissible from either an order of nonsuit or from an order directing judgment on a nonsuit.”

It will not be contended that in some instances a certain entry is not a judgment. But each such entry depends on its particular form and contents. The minute entry is frequently a mere narration or a memorandum on which thereafter to prepare a judgment. Ferris v. Baker, 127 Cal. 520, 59 P. 937; In re Estate of Yale, 208 Cal. 102, 280 P. 358; Scrimsher v. Reliance Rock Co., 1 Cal.App.(2d) 382, 36 P.(2d) 688. We think the minute entry made March 3, 1937, was solely such an entry and that the record does not disclose any judgment has ever been entered. It follows that the plaintiff's appeal was not taken too late and should not for that reason be dismissed.

The plaintiff concedes that it may be contended his appeal was premature. Be that as it may, he contends this motion should not be granted for the motion was not based on the ground the appeal was premature. He further cites and relies on section 939 of the Code of Civil Procedure (as amended by St.1933, p. 306). The facts show no judgment has been entered and that the notice of appeal has not conferred jurisdiction on this court. Under those circumstances a court will of its own motion dismiss the purported appeal. 2 Cal.Jur. 765.

It is therefore ordered that the appeal be dismissed without prejudice to the rights of either party.

STURTEVANT, Justice.

We concur: SPENCE, Acting P. J.; GOODELL, J., pro tem.