Bertch v. Social Welfare Dept. of Cal.

• Decision Date: 28 March 1957
• Citation: 308 P.2d 397,149 Cal.App.2d 517
• Court: California Court of Appeals Court of Appeals
• Parties: Harriet Jane BERTCH, Kathryn L. Brooke, Alfred A. Cheney, Andy T. Cope, Frankie May Cope, Robert Vern Crooks, Carrie N. Crooks, Myrtle Everett, William Guy, Sophia A. Hall, Maude D. Harrel, Edward Loftus, Louise Mackay, Cornelia G. Mattox, Laura Petersen, David L. Rubinson, Lillian G. Robinson, Minnie E. Schroder, Eda Strever, Annie Laurie Stewart, Theresa F. Tembreull, and Lillian Wells, Petitioners and Respondents, v. SOCIAL WELFARE DEPARTMENT of the State OF CALIFORNIA, Respondent and Appellant. Civ. 17534.

Page 397

308 P.2d 397

149 Cal.App.2d 517

Harriet Jane BERTCH, Kathryn L. Brooke, Alfred A. Cheney, Andy T. Cope, Frankie May Cope, Robert Vern Crooks, Carrie N. Crooks, Myrtle Everett, William Guy, Sophia A. Hall, Maude D. Harrel, Edward Loftus, Louise Mackay, Cornelia G. Mattox, Laura Petersen, David L. Rubinson, Lillian G. Robinson, Minnie E. Schroder, Eda Strever, Annie Laurie Stewart, Theresa F. Tembreull, and Lillian Wells, Petitioners and Respondents, v. SOCIAL WELFARE DEPARTMENT of the State OF CALIFORNIA, Respondent and Appellant.

Civ. 17534.

District Court of Appeal, First District, Division 2, California.

March 28, 1957.

Howard B. Crittenden, Jr., San Francisco, for petitioners.

Edmund G. Brown, Atty. Gen., Clarence A. Linn, Asst. Atty. Gen., for respondent.

DRAPER, Justice.

Respondents move to dismiss this appeal upon the ground that it was filed too late.

This is the second appeal in this action, which began when plaintiffs petitioned for writ of mandate to review an order of the State Social Welfare Board. The Superior Court denied the writ. On Appeal, that judgment was reversed, and the issues were settled by the decision on appeal, Bertch v. Social Welfare Department, 45 Cal.2d 524, 289 P.2d 485. Plaintiffs then moved for judgment on the remittitur, and in the same motion sought attorneys' fees, to, which plaintiffs were entitled under Section 104.3, Welfare and Institutions Code. Judgment was entered in accordance with the views expressed in the Supreme Court decision, and attorneys' fees were awarded to each plaintiff in the sum of $500. This judgment was entered on August 20, 1956. On August 30, defendant filed its notice of intention to move for new trial. This motion was denied October 19. Defendant's notice of appeal was filed November 14.

It is apparent that the appeal was taken after expiration of the 60-day period provided by Rule 2, Rules on Appeal. Appellant contends, however, that Rule 3 is applicable. This rule provides that 'when a valid notice of intention to move for a new trial' is filed, the time for filing the notice of appeal is extended until 30 days after denial of the motion. Respondents argue that the motion for new trial is not 'valid', and that, therefore, the appeal is not timely.

New trial procedure is wholly statutory. If the right to new trial is not found in the statute, it does not exist. Mann v. Superior Court, 53 Cal.App.2d 272, 127 P.2d 970; Gray v. Cotton, 174 Cal. 256, 162 P. 1019. Our statute defines a new trial as 'a re-examination of an issue of fact in the same court after a trial and decision by a jury, court, or referee', Code of Civil Procedure, § 656. 'An issue of fact arises * * * upon a material allegation in the complaint controverted by the answer', Code of Civil Procedure, § 590.

In the case at bar, there was no trial or examination of any issue of fact, so far as concerns the issue of respondents' right to the principal relief they sought. Rather, the judgment was entered upon the remittitur, upon respondents' motion for such relief. The general rule is that a motion...