TALIAFERRO v. CROLA (1963)

On June 20, 1960 the trial court entered judgment in favor of respondents. The record before us does not disclose any motion for a new trial. On August 17, 1961, appellant filed a motion to vacate the judgment, and this motion was denied by minute order on August 28, 1961. The appeal now before us is from the minute order by which the trial court refused to vacate its judgment.

It is apparent from the brief statement just made that appellant seeks to appeal from a non-appealable order, because the minute order refusing to vacate the judgment is, under the facts here present, a non-appealable order. (Arthur v. City of Los Angeles, 144 Cal.App.2d 545, 546, 301 P.2d 286; Sharpe v. Sharpe, 55 Cal.App.2d 262, 265, 130 P.2d 462; 3 Cal.Jur.2d 491; 3 Witkin, Calif.Proc., p. 2170; § 26.) Appellant had the right to appeal from the judgment but did not do so within the time limited by law, and he cannot extend his time to appeal by the simple expedient of a motion to vacate the judgment, made at his own convenience, and later appeal from the order denying his motion. (See Estate of Baker, 170 Cal. 578, 581–582, 150 P. 989.)

Where, as here, the appellate court is presented with an appeal from a non-appealable order, it is the duty of the court to dismiss the appeal. (Collins v. Corse, 8 Cal.2d 123, 124, 64 P.2d 137; Wilson v. Wilson, 96 Cal.App.2d 589, 596, 597, 216 P.2d 104.)

The appeal is dismissed.

SALSMAN, Justice.

DRAPER, P. J., and DEVINE, J., concur.