Skip to main content


District Court of Appeal, First District, Division 1, California.


Cr. 2433.

Decided: February 05, 1947

John Slobodion, in pro per. Robert W. Kenny, Atty. Gen., and David K. Lener, Deputy Atty. Gen., for respondent.

This is a motion by respondent to dismiss this appeal on the ground that the notice of appeal was filed too late.

The following dates are admittedly correct:

June 11, 1946—defendant found guilty of two felonies.

June 13, 1946—rendition of judgments.

June 15, 1946—appellant received at San Quentin.

June 28, 1946—the clerk of the Superior Court received through the mails and filed a notice of appeal from the judgments. This notice was postmarked San Quentin, June 27, 1946, and the records of that institution disclose that the document was in fact mailed that day.

Rule 31 of the Rules on Appeal provides that an appeal in a criminal case may be taken ‘by filing a written notice of appeal with the clerk of the superior court within 10 days after the rendition of the judgment.’ The time for appeal elapsed on June 23, 1946, and the notice filed on the 28th was obviously filed late. It is on this ground that respondent has moved to dismiss.

In opposition to the motion the appellant, who is appearing in propria persona, filed an affidavit in which it was charged that he had in fact deposited the notice of appeal in the mailbox at San Quentin as early as June 17, 1946, well within the statutory time, and that the failure to have the notice placed in the United States mail until the 27th was the fault of the prison employees. Certain counter-affidavits were filed by prison employees in which certain of the facts averred by appellant were contradicted. In view of this conflict, this court appointed Andrew R. Schottky, Judge of the Superior Court of the County of Mariposa, referee to ascertain the true facts. Pursuant to this order Judge Schottky held a hearing at San Quentin at which the appellant, the employees in question and a deputy attorney general were present. At this hearing the appellant testified that he dropped the letter containing his notice of appeal in the prison mail box on June 17th; that it was returned to him by the mailman of his cell block on the night of June 20 without explanation; that on the morning of June 21, he went to the mailing office and talked with Mr. Kehoe, the sergeant in charge of the mail; that Kehoe, in his presence, interrogated several persons in an effort to determine why the letter had been returned; that no one seemed to know; that he told Kehoe of the nature of the document and the importance of having it mailed at once; that Kehoe took the letter and promised to have it taken care of; that he did not know that it had not been mailed in time until the reporter refused to prepare the transcript on appeal. Not one word of this testimony was contradicted by the employees involved. Kehoe testified that he had no recollection of such a conversation with appellant, but stated that he was so busy in the mail office that he could not remember the various conversations with the inmates; that while he could not remember the conversation it may have occurred, and he would not say that it had not; that all legal documents had to be cleared with the warden before they could be mailed; that the records of the prison do not show when documents are received from the inmates, but only show when they are in fact mailed after clearing with the prison officials; that on June 23, he went on his vacation; that he cannot explain why the document was retained and not mailed sooner. John Short, the Assistant Parole and Classification Officer, an employee of the prison who apparently discusses legal problems with the inmates and with whom appellant stated he talked about the matter, had a record that showed that an interview with appellant had taken place on the date testified to by appellant, but he had no recollection at all of what was discussed; that his statement in his affidavit as to the contents of such conversation was probably in error; that he would not deny that the conversation had taken place as testified to by appellant.

On this evidence Judge Schottky found that ‘in view of the clear testimony of appellant and the indecisive and unsatisfactory testimony of the other two witnesses and after having heard the testimony and observed the witnesses as they were testifying, I must find that the evidence preponderates in favor of the statement of appellant Slobodion that he did deposit his notice of appeal in the regular mail processes of San Quentin Penitentiary on June 17, 1946, and certainly not later than June 21, 1946. I do not believe that there was any desire or intention on the part of any of the employees at San Quentin to deprive appellant of his right of appeal but that in some manner the ordinary and usual processes of receiving and sending out mail failed to function in this particular case.’

We have read the record. The above finding is not only amply supported, but in view of the record no other finding reasonably could have been made. We adopt said finding as the finding of this court.

The problem thus presented can be simply stated. Where an appellant is incarcerated by the State and desires to appeal, where he takes every step he can possibly take to perfect his appeal, where he delivers his notice of appeal to the prison authorities well within the statutory period with a request to mail it, and when the prison authorities carelessly and negligently fail to mail such notice, is the appellate court powerless to grant him relief? If any such power exists under any circumstances it is quite apparent it should be exercised in this case.

It has frequently been held in this state, both in civil and criminal cases, that the time requirements for the taking of an appeal are mandatory, and that the appellate courts are within jurisdiction to consider an appeal taken subsequently to the expiration of the statutory period. In re Estate of Hanley, 23 Cal.2d 120, 142 P.2d 423, 149 A.L.R. 1250, and cases cited therein; People v. Lewis, 219 Cal. 410, 27 P.2d 73, and cases cited therein. In the Estate of Hanley, in a civil case, it was held that such rule applied even where the respondent innocently misled the appellant as to the time within which to appeal, and it was held by dicta that such rule applied even where the respondent was guilty of active fraud or bad faith. This holding, insofar as the dicta is concerned, is clearly contrary to the weight of authority. The substantial weight of authority is to the effect that where the failure to file the notice of appeal is the result of fraud, duress, or imposition by the adverse party it will constitute grounds to warrant an appellate court in relieving the appellant from his default. (See cases collected in an annotation, 149 A.L.R. 1261; see cases collected in note, 32 Cal.L.Rev. 84.) In fact there is direct authority in this state to the effect that where the respondent by fraud or imposition prevents the appellant from filing his notice of appeal the respondent is estopped from urging the point that the notice was filed too late. Moyle v. Landers, 78 Cal. 99, 20 P. 241, 12 Am.St.Rep. 22. Strangely enough the majority opinion in the Hanley case cites the Moyle case for the proposition that a stipulation of all the parties that an appeal may be filed late cannot confer jurisdiction, but does not note that the case directly held that fraud was ground for relief. Neither of the dissenting opinions in the Hanley case refers to the Moyle case.

In criminal cases the rule has been frequently stated as it appears in People v. Lewis, 219 Cal. 410, 414, 27 P.2d 73, 74: ‘Where, through inadvertence or mistake of a party or his attorney, notice is not filed within the time limited by law, neither the trial court nor appellate court can afford relief thereafter by permitting filing of a tardy notice.’

The basis for the rule is that the time limit for appeal is ‘jurisdictional.’ But this factor cannot be an absolute bar to a late filing because that rule is of well nigh universal application (see cases collected 4 C.J.S., Appeal and Error, § 428, n. 92, p. 884) and exists in the many states where some limited form of relief can be secured. It must be remembered that the only bar to hearing this appeal exists by virtue of a rule of court which has the force of a statute. This court, of course, derives its power to hear appeals not from any statute but from the Constitution itself. While the Legislature or the Judicial Council undoubtedly have the power to provide the rules under which that power can be exercised, no lawmaking body has the power to take away from this court its constitutionally granted powers. If it once be held that when the Legislature has adopted a regulatory statute, such as providing that an appeal must be taken within a specified time, there are no conceivable circumstances that would justify a court in relieving for failure to file in time, then the Legislature could practically deprive a court of its constitutionally granted powers. The mere statement of such a proposition demonstrates its unsoundness. Certainly the California courts have not been so sensitive about so-called ‘jurisdictional’ requirements in analogous situations where the ends of justice require it. Thus, when an appellate court sends down its remittitur it loses ‘jurisdiction’ of the case, but it is elementary law that where the ends of justice require it the remititur may be recalled. (See cases commented on 23 Cal.L.Rev. 354.) The basis of this rule is that a court cannot lose jurisdiction by fraud or imposition, and the theory is that by reason of the fraud or imposition the court never has lost jurisdiction. Isenberg v. Sherman, 214 Cal. 722, 7 P.2d 1006. It would seem to follow that fraud or imposition cannot operate so as to prevent an appellate court from acquiring its constitutionally granted powers in the first instance.

In the instant case there was no fraud, but there was negligence on the part of the prison employees. In other words, the State seeks to dismiss this appeal when the negligence of state employees is the sole reason that the appeal was not filed in time. It would be a strange doctrine that would permit the State to dismiss an appeal because it was not filed in time when that failure was caused by the State itself. If any such doctrine were once adopted it would mean that the right of appeal in criminal cases could be denied, where the person convicted desires to appeal in propria persona, by the simple device of the prison officials delaying the mailing of the notice of appeal. The inmate would be powerless to prevent such delay. The right of appeal is too important a right to rest on such an illusory and unsubstantial foundation. It would approach a denial of due process and equal protection of the laws to hold that the State could thus take advantage of the negligence and carelessness of its own employees.

For these reasons we hold that, whatever the rule may be in civil cases, in criminal cases, where the appellant has taken every step required by law within the time required by law to perfect his appeal, and the sole reason that the appeal is not filed is the negligence of state employees, the ends of justice can only be served by relieving from the default and thus protecting the constitutional powers of this court and the fundamental rights of appellant.

The appellant has filed a motion to compel the trial court reporter to prepare the reporter's transcript of his trial. The reporter refused to do so apparently on the ground that the appeal had been taken too late.

It is ordered that this notice of appeal be filed nunc pro tunc as of June 21, 1946, that the reporter be directed to prepare the transcript on appeal, and that this motion to dismiss be denied.

PETERS, Presiding Justice.

WARD, J., concurs.

Was this helpful?

Thank you. Your response has been sent.

Welcome to FindLaw's Cases & Codes

A free source of state and federal court opinions, state laws, and the United States Code. For more information about the legal concepts addressed by these cases and statutes visit FindLaw's Learn About the Law.

Go to Learn About the Law

Docket No: Cr. 2433.

Decided: February 05, 1947

Court: District Court of Appeal, First District, Division 1, California.

Get a profile on the #1 online legal directory

Harness the power of our directory with your own profile. Select the button below to sign up.

Sign up

Learn About the Law

Get help with your legal needs

FindLaw’s Learn About the Law features thousands of informational articles to help you understand your options. And if you’re ready to hire an attorney, find one in your area who can help.

Learn more about the law
Copied to clipboard