Pitino-Capasso Fruit Co. v. Hillside Packing Co. , 90 Cal. App. 191 ( 1928 )

This is an action by a vendee against his vendor to recover damages alleged to have been sustained for a breach of an alleged contract of sale. Defendant had judgment and plaintiff appeals from the judgment and also from the order denying plaintiff's motion to vacate the judgment under the provisions of section 663 of the Code of Civil Procedure.

Respondent urges in his reply brief a preliminary objection to the hearing of these appeals upon the ground that this court has acquired no jurisdiction to consider them. To this contention appellant makes no reply either by brief or oral argument.

[1] As regards the attempted direct appeal from the order made pursuant to section 663 of the Code of Civil Procedure, it is clear that this court has no appellate jurisdiction. (ModocCo-op. Assn. v. Porter, 11 Cal.App. 270, at p. 274 [104 P. 710]. See, also, Kline v. Murray, 79 Mont. 530 [257 P. 465]; Lindgren v. Weaver, 80 Cal.App. 660 [252 P. 669].)

[2] As regards the attempted appeal from the judgment, section 939 of the Code of Civil Procedure, as amended in 1915 (Stats. 1915, p. 205), provides that such an appeal must be taken within sixty days from the entry of the judgment. (Sec. 940, Code Civ. Proc.; Estate of Scott, 124 Cal. 671, 675 [57 P. 654];Steward v. Spano, 82 Cal.App. 306 [255 P. 532]; Wilson v. Durkee, 20 Cal.App. 492 [129 P. 617].)

The clerk's transcript shows that the judgment appealed from was entered in the judgment-book not later than October 6, 1925.

There is no record of any motion for a new trial herein. (Aspegren Co. v. Sherwood, Swan Co., 199 Cal. 532 [250 P. 400].)

Furthermore, the clerk's transcript shows that the notice of appeal was not filed until December 31, 1925. Since the time for filing is mandatory, the appeal herein from the judgment must be also dismissed. (Smith v. Questa, 58 Cal.App. 1, at page 4 [207 P. 1036]; Steward v. Spano, supra.)

Appeal dismissed.

Hart, Acting P.J., and Plummer, J., concurred.