Mathews v. Davison

TYLER, P. J. Motion to dismiss the appeal herein on the ground that it was taken after the time limited by law. Judgment was entered on February 26, 1929. On March 6, 1929, a notice of intention to move for a new trial was served and filed. This document recites that the defendant *347 Home Fire and Marine Insurance Company intends to move the court for an order vacating the judgment and granting a new trial on various grounds stated in the notice. It was further recited that the motion would be made upon the minutes of the court. It is here claimed in support of the motion to dismiss that as no motion for a new trial was ever made, the proceedings taken by appellant were not sufficient to extend the time within which to take the appeal, and therefore it was taken too late and should be dismissed. The position is without merit. Where a notice of intention to move for a new trial is served and filed within the statutory time, it extends the time within which an appeal may be taken, even though the motion is not presented within sixty days after service of notice of entry of judgment; and a notice of appeal filed within the statutory time after denial of such motion by operation of law is within time. Under section 939 of the Code of Civil Procedure the filing of such notice in time is the commencement of a new proceeding, which remains pending until disposed of by the court or by operation of law. (Estate of Bergland, 177 Cal. 227 [170 Pac. 400]; Ferguson v. Fonner, 87 Cal. App. 590 [262 Pac. 337].) The motion to dismiss is denied. Knight, J., and Cashin, J., concurred.