Sac. No. 2814.
March 19, 1918.
MOTION to dismiss an appeal.
The facts are stated in the opinion of the court.
R.L. Beardslee, and Nutter Hancock, for Appellant.
Snyder Snyder, for Respondent.
This is a motion to dismiss an appeal from a judgment and an order denying a new trial, on the ground, as to the appeal from the judgment, that the appeal was taken too late, and as to the order denying a motion for a new trial, that the same is not an appealable order.
As to the appeal from the judgment: The judgment was entered April 27, 1911. The appeal therefrom was not taken until December 21, 1917. At the time of the entry of the judgment and until August 8, 1915, the time within which an appeal might be taken from a judgment was limited to six months. Therefore on August 8, 1915, the time for appeal from the judgment had long since elapsed. There was, however, pending at that time a proceeding on motion for a new trial which had been duly instituted, and the law up to that time provided for an appeal from any order that might be made denying or granting the motion. On December 1, 1917, the bill of exceptions to be used on said motion for a new trial was settled and on the same day the motion for a new trial was heard and denied, and the appeal was taken within thirty days thereafter. At its session in 1915, the legislature so changed our law as to abolish the right of appeal from an order denying a motion for a new trial and to provide that such order might be reviewed on an appeal from the judgment, and to further provide in regard to the time within which appeals from the judgment might be taken that "if proceedings on motion for a new trial are pending, the time for appeal from the judgment shall not expire until thirty days after entry in the trial court of the order determining such motion for a new trial, or other termination in the trial court of the proceedings upon such motion." (Code Civ. Proc., secs, 939, 956, 963.) This change became effective August 8, 1915, at a time when the appellant's right to appeal from the judgment had long since lapsed. We think it was the clear intent of the legislature, as indicated by this statutory provision, in taking away the right of appeal from the order denying a motion for a new trial to provide for a review of all matters that might be considered on such an appeal on an appeal from the judgment, and that the plain purpose of the provision that we have quoted was to give to the party an opportunity for such a review in any and every case in lieu of the review previously afforded. Although there was no appeal from the judgment in this case within the time allowed by law, there was initiated in due time and pending until after the change in the law a proceeding on motion for a new trial. By failing to appeal from the judgment and relying entirely on the proceeding on motion for new trial, the appellants waived all right to attack the judgment on any other ground than such as was afforded by their new trial proceeding, and the judgment had become final and immune from attack except in such respects as it might be affected by the determination of the new trial proceeding. With the change in the law the legislature took away all right of appeal from the order that might be made in such new trial proceeding, but in taking away that right we think, in view of the statute, that it was the intention to give the party substantially the same review on appeal that he would have had on the appeal from the order. It did this by giving in such a case a right of appeal from the judgment within the specified time after the order on the new trial proceedings. It was given, as we have heretofore expressly held, for the purpose of allowing the action of the court on the motion for new trial to be reviewed on an appeal from the judgment. It was simply a change in the method of review. It follows that the appeal from the judgment was taken within the time allowed by law.
The appeal from the order denying a new trial is dismissed. As to the appeal from the judgment the motion to dismiss is denied.
Richards, J., pro tem., Wilbur, J., Victor E. Shaw, J., pro tem., and Melvin, J., concurred.