French v. MacNider

M. H. FRENCH, Respondent, v. WILLIAM MACNIDER, Appellant

French v. MacNider, 151 P. 371 (Cal. Ct. App. 1915)

Court: California Court of Appeal · State Appellate Courts
Decided: July 12, 1915
Docket: No. Civ. No. 1840.
Judges: THE COURT. —
Citations: 151 P. 37128 Cal. App. 671915 Cal. App. LEXIS 321

Cited by 7

Headnotes

Appeals—Notice of Entry of Judgment—When Unnecessary—Section 958a, Code Civil Procedure.—When a losing party has filed a notice of appeal from a judgment, the fact of actual notice to him of the entry of judgment is established by his own act. The decisions which hold that under section 941b of the Code of Civil Procedure the notice therein mentioned must be in writing and that actual notice is not sufficient to start the time running for the purposes stated in that section are not applicable to the provisions of section 953a.

Summary

MOTION to dismiss an appeal from a judgment of the Superior Court of Los Angeles County. The facts are stated in the opinion of the court.

Syllabus and headnotes are prepared by the reporter or publisher, not the court, and are not part of the opinion.

Opinion of the Court

THE COURT.

Judgment herein was entered on March 13, 1915. It does not appear that any written notice of entry of that judgment was served upon the defendant. Nevertheless he did, on April 6, 1915, file a notice of appeal. On June 22, 1915, the respondent served and filed notice to dismiss the appeal on the ground that appellant has failed to file any transcript on appeal within the time prescribed by law and the rules of this court.

That the transcript has not been filed or any request made therefor is admitted. The appellant’s one contention in response to the motion is that, since a written notice of entry of judgment was not served upon him, the time has not commenced to run against him for filing his notice to the clerk requesting a transcript, as provided by section 953a of the Code of Civil Procedure; and therefore that the absence from the record on appeal of the documents required under that section does not furnish a sufficient ground for the dismissal of his appeal at this present time.

*68 It seems to us that when the losing party has filed a notice of appeal the fact of actual notice to him is established by his own act. The decisions which hold that under section 941b of the Code of Civil Procedure, the notice therein mentioned must be in writing and that actual notice is not sufficient to set the time running for the purposes stated in that section, are not applicable to the provisions of section 953a.

(Fiske v. Gosbey, 168 Cal. 334 , [ 143 Pac. 611 ].)

The motion of respondent is granted and the appeal is dismissed.

How later courts describe this case

No later court has written an explanatory parenthetical about this case yet.

Cited by 7 cases

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Relies on it most ⓘ

Sim v. Weeks45 P.2d 350 (Cal. Ct. App. 1935)
Weaver v. Grunbaum87 P.2d 406 (Cal. Ct. App. 1939)
Bonadelle Construction Co. v. Hernandez337 P.2d 85 (Cal. Ct. App. 1959)
Fuller v. Mann6 P.2d 999 (Cal. Ct. App. 1932)
Brooks v. Fidelity Savings & Loan Ass'n128 P.2d 711 (Cal. Ct. App. 1942)
Wray v. Young210 P. 794 (Wash. 1922)

Most recent

Bonadelle Construction Co. v. Hernandez337 P.2d 85 (Cal. Ct. App. 1959)
Campbell v. Jung261 P.2d 549 (Cal. Ct. App. 1953)
Brooks v. Fidelity Savings & Loan Ass'n128 P.2d 711 (Cal. Ct. App. 1942)
Weaver v. Grunbaum87 P.2d 406 (Cal. Ct. App. 1939)
Sim v. Weeks45 P.2d 350 (Cal. Ct. App. 1935)
Fuller v. Mann6 P.2d 999 (Cal. Ct. App. 1932)

Citing references are not a citator: they show that a later opinion cites this case, not whether it followed, distinguished, or overruled it. Check negative history before relying on this case.

Authorities cited 1

Depth	Case	Cited by
	Fiske v. Gosbey, 143 P. 611 (Cal. 1914)	14

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