Bell v. Staacke

The respondent moves to dismiss the appeals herein taken from the judgment and also from the order denying appellants' motion for a new trial.

The ground of the motion to dismiss the appeal taken from the judgment, among others, is, that the notice of appeal was prematurely given, being served and filed on the eighth day of July, 1901, and that the final judgment and decree in said action was entered on the ninth day of July, 1901, and not before that day. The showing in support of the motion establishes the fact very clearly that the judgment in the case was entered July 9, 1901, and not before said date, as claimed on the part of the respondent. Section 939 of the Code of Civil Procedure fixes the time for appeal from the judgment so as to run from the entry thereof; and under this provision it has been repeatedly held that an appeal from a judgment will not lie until after judgment is entered, and if taken before will be dismissed for want of jurisdiction in the appellate court.(Lorenz v. Jacobs, 53 Cal. 24; McLaughlin v. Doherty, 54 Cal. 519; Home of Inebriates v. Kaplin, 84 Cal. 488; Wood v. EtiwandaWater Co., 122 Cal. 152; Estate of Devincenzi, 131 Cal. 452.)

The main grounds of the motion to dismiss the appeal from the order denying appellants' motion for a new trial are, that the only notice of intention to move for a new trial was served and filed in said action on the ninth day of March, 1901, whereas the final decision was not made or filed in said court until the seventh day of June, 1901; and further, that no undertaking on the appeal from said order was ever filed in said action. The premature service of a notice of intention to move for a new trial, or a failure to serve such notice at all, might be a good reason for denying the motion, but does not deprive this court of jurisdiction to hear the appeal, nor does it constitute a reason for its dismissal upon the ground that the court has not jurisdiction to hear it. Matters occurring prior to the order appealed from cannot be considered on the motion to dismiss an appeal. (Heinlen v. Heilbron, 94 Cal. 636; Knowlton v. McKenzie,110 Cal. 190; Barnhart v. Fullkerth, 92 Cal. 155; Centervilleetc. Ditch Co. v. Bachtold, 109 Cal. 111; In re Ryer, 110 Cal. 556; Sutter Co. v. Tisdale, 128 Cal. 180.) The undertaking given in this case recites the fact that the appellants named were about to appeal from the decree and judgment entered therein, and also from the order of said court made and entered in said action, and as stated therein is given in consideration of such premises.

It has been repeatedly held that on an appeal from both the judgment and an order denying a new trial only one undertaking for three hundred dollars need be filed in order to give this court jurisdiction of both appeals. This is, however, an exception to the general rule requiring a separate undertaking for each appeal, but the practice has been continued so long and has become so well settled that the court has on several occasions expressly declined to disturb the rule. (Chester v.Bakersfield Town Hall Assn., 64 Cal. 42; Sharon v. Sharon, 68 Cal. 326; Centerville etc. Ditch Co. v.Bachtold, 109 Cal. 111; Williams v. Dennison, 86 Cal. 430.)

The motion to dismiss the appeal taken from the judgment must be granted. The motion to dismiss the appeal from the order refusing a new trial is denied.

Harrison, J., Garoutte, J., McFarland, J., and Henshaw, J., concurred.