Opinion
Appeal from the District Court of the Third Judicial District, County of Alameda.
This was an action for the restitution and possession of certain lands on the Encinal of San Antonio. The plaintiffs had judgment for the possession of the entire premises described in the complaint. Afterwards the Court modified the judgment so as to make it apply to a smaller tract. The defendants appeal from the modified judgment.
COUNSEL
Sharpstein and Hastings, for Appellants.
Chipman, for Respondents, moved to dismiss the appeal, on the ground that it was taken too late. He argued that the modification of the judgment was nothing more than an order subsequent to judgment, and was not appealable after sixty days, and cited Calderwood v. Peyser , 42 Cal. 111.
OPINION By the Court:
A judgment was originally rendered in the action on the 11th day of October, 1870. As the result of a motion for a new trial, a modification of this judgment was directed by the Court below on March 30th, 1871. On March 5th, 1872, an appeal was taken " from the judgment * * * entered * * * on the 30th day of March, A. D. 1871." Objection is now made by the respondent, that the appeal, having been taken more than one year after the 11th day of October, 1870, is too late, and must be dismissed on that ground. The modification of a judgment, made as the result of a motion for a new trial, is in effect the rendition of a new judgment, and a party desiring to have it reviewed may appeal at any time within one year after its rendition.
Motion to dismiss the appeal denied, and cause continued, with leave to the respondent to suggest a diminution of the record, if he be so advised.