Lantz v. Val , 199 Cal. 190 ( 1926 )

Respondent Victorine Vai has moved to dismiss the appeals noticed by appellant. As plaintiff in the court below, the appellant brought an action to quiet title to real property. Certain of the defendants, including the respondent Victorine Vai, answering, traversed the allegations of the complaint, and Victorine Vai, by way of cross-complaint, sought to quiet her title to the same land, but under a different description, as against the claims of the plaintiff. The trial court found that both the plaintiff and the defendant Victorine Vai had failed to establish title, or right of possession, and entered judgment that neither plaintiff nor defendant Victorine Vai was the owner of the property.

Judgment was entered on August 19, 1925. On September 8, the defendant Vai served on plaintiff notice of the entry of this judgment. On September 15 she served on plaintiff, and filed, notice of intention to move for a new trial, and on the same day gave notice of motion to have the judgment vacated and set aside and another and different judgment entered. The motion was granted. The court set aside and vacated the judgment of August 19 and rendered another by which it was decreed merely that the plaintiff Lantz is not the owner, or entitled to the possession, of the real property in dispute. The substituted judgment was entered on October 14, 1925, and on October 27 the defendant Vai served on plaintiff notice of its entry. Plaintiff excepted to the order granting the motion for another judgment, and prepared a bill of exceptions thereto, which was served on October 31, and settled, allowed and filed on November 19. On the last-named date plaintiff obtained an order from the court extending for thirty days his time within which to prepare a bill of exceptions to the substituted judgment. This second bill of exceptions was presented to the trial judge and was refused settlement on January 14, 1926.

Reference has been made to the fact that on the fifteenth day of September, 1925, the defendant Victorine Vai served and filed a notice of intention to move for a new trial. On the nineteenth day of September the plaintiff also served and filed like notice of intention. On November 9, 1925, the motions for a new trial appear to have been denied, although the record in the court below is indefinite as to what actually occurred. On November 24, 1925, plaintiff filed a notice of appeal from that portion of the judgment entered on August 19 in favor of the defendant Victorine Vai and against plaintiff and also from the substituted judgment of October 14.

The respondent Victorine Vai has moved to dismiss the appeals upon the ground that the notice of appeal was not filed within the time allowed by law, and that the transcript was not prepared and filed within time. Appellant conceded at the time of the oral argument that his appeal from the judgment of August 19, 1925, was not properly taken, and might be dismissed. As no formal order of dismissal was entered at the time, he now requests that he be allowed to withdraw the concession. But we are of the opinion that no appeal lies from the judgment of August 19. The effect of the order vacating and setting aside the judgment was to destroy it. (See Mantel v. Mantel, 135 Cal. 315 [67 P. 758].) There can be no appeal from a judgment which has been set aside; neither can a motion for a new trial be predicated upon a judgment which does not exist. It is therefore unnecessary to consider the contention of the appellant that valid proceedings on the motions for a new trial heretofore noted were pending. The appeal from the judgment of August 19 must be dismissed.

The order granting the motion to vacate the judgment of August 19 was one properly reviewable on appeal in the same manner as a special order made after final judgment and on a bill of exceptions to be prepared in accordance with the provisions of section 649 of the Code of Civil Procedure. (Code Civ. Proc., 663a.) Such a bill was prepared and filed on the nineteenth day of November. Therefore, when appellant filed his notice of appeal on the twenty-fourth day of November, his appeal was perfected and his record made. The time within which to file his transcript commenced to run on that date, and the forty days expired on the third day of January, 1926. No extension of time for the preparation or the filing of the transcript as to this appeal was obtained, and the plaintiff was not relieved of his default. At the time this notice of motion to dismiss the appeal was given plaintiff had not only failed to file his transcript within forty days (Supreme Court Rule II), but seventy-seven days had in fact elapsed. These facts entitle the respondent to an order dismissing the appeal from the order vacating and setting aside the judgment of August 19, 1925.

Notice of entry of the substituted judgment was served on the twenty-seventh day of October, 1925, and plaintiff, under section 650 of the Code of Civil Procedure, then had ten days to prepare and serve a draft of his proposed bill of exceptions. The ten days expired on November 7. He did not apply for an extension of time to prepare this bill until the nineteenth day of November, which was twelve days too late. The order of the judge granting the extension after the expiration of the statutory period within which to prepare the bill was ineffective and was properly ignored by the lower court as conferring no authority upon it to settle the bill subsequently presented. (In re Clary, 112 Cal. 292, 295 [44 P. 569]. See, also, Cameron v. Arcata etc. R.R. Co.,129 Cal. 279 [61 P. 955], and Rath v. Vaughan, 45 Cal.App. 38 [187 P. 44].)

No transcript having been prepared and filed within the time required by law, and it not appearing that the plaintiff below who is seeking to appeal was relieved from his default, it is ordered that the appeals be and they are dismissed.

Richards, J., Seawell, J., Shenk, J., Curtis, J., and Lennon, J., concurred.

Rehearing denied.