Lipman v. Slimmer
IN RE ESTATE OF ABRAHAM SLIMMER, ADOLPH LIPMAN v. ABRAHAM SLIMMER, JR., AND OTHERS
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Opinion of the Court
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Per Curiam.
Judgment in this case was entered December 30, 1918. On January 2, 1920, notice of motion to vacate the judgment was served. This motion was denied by order filed January 14, 1920. Written notice of the filing of this order was duly served January 17, 1920. On July 13, 1920, appellant served notice of appeal from the judgment and the order. Respondent moves to dismiss the appeal on the ground that it was not taken in time.
The appeal must be dismissed. The time to appeal from the order expired “within thirty days after written notice of the same,” and the time to appeal from the judgment expired “within six months after the entry thereof.” G. S. 1913, § 8000.
The order of January 14 was in no sense a judgment and the time to appeal from it had expired long before the notice of appeal was given.
The contention that the time to appeal from the judgment did not commence to run until the motion to vacate it had been denied cannot be sustained.
*430 The facts are that an application to vacate the judgment was filed in February, 1919. This act was wholly ineffectual for any purpose without notice of the application being given. The notice of motion to vacate was served long after the time for appeal from the judgment had expired. But we do not predicate this decision on that ground. We base our decision on the proposition that the statute in language clear and not open to construction limits the time to appeal from a judgment to six months after entry thereof and that the act of the defeated party in moving to vacate the judgment cannot operate to extend that time.
Appeal dismissed.
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