Kientz v. Harris

• Decision Date: 15 May 1953
• Citation: Kientz v. Harris, 117 Cal.App.2d 787, 257 P.2d 41 (Cal. App. 1953)
• Court: California Court of Appeals
• Parties: KIENTZ v. HARRIS. Civ. 8418.

Page 41

257 P.2d 41

117 Cal.App.2d 787

KIENTZ v. HARRIS.

Civ. 8418.

District Court of Appeal, Third District, California.

May 15, 1953.

Hoge & Fenton, Monterey, and Verne Summers, Bridgeport, Bronson, Bronson & McKinnon, San Francisco, for appellant.

C. Ray Robinson, Merced, for respondent.

VAN DYKE, Presiding Justice.

Victor Vincent Kientz, as plaintiff in the trial court, filed an action against Arthur O'Dell Harris, wherein he sought damages for the alleged wrongful death of Ruth Evelyn Kientz. On November 17, 1952, a judgment was entered in the action that plaintiff recover the sum of $25,000. Notice of entry of judgment was, after service, filed on November 22, 1952. It was received by counsel for the appellant on November 22d. Notice of intention to move for a new trial was filed on behalf of defendant, appellant here. It was stamped as having been filed December 5th. It had actually been received at the office of the clerk on December 1st. That official, noting that no fee had been forwarded with the notice and being, as he states in his affidavit filed with this Court, in doubt as to his legal right to stamp the paper as filed on that date without payment of the filing fee, did not stamp the notice as filed, but immediately mailed to counsel for appellant his invoice acknowledging receipt of the notice and requesting the filing fee. On December 5th the clerk received from counsel for the appellant, again through the mail, a check for the fee and on that day stamped the notice as filed. Section 659 of the Code of Civil Procedure, so far as material here, provides that a party intending to move for a new trial must within ten days after receiving written notice of the entry of judgment 'file with the clerk' and serve a notice of his intention to so move. The section further provides that the specified time shall not be extended by order or stipulation. It is to be noted that if the notice of intention be considered as filed when received by the clerk on December 1st the filing was within time, but if considered as filed when, after receipt of demanded fees, the clerk stamped it as being filed the filing was too late and the court had no jurisdiction to pass upon the motion. 20 Cal.Jur. 'New Trial', secs. 109, 110. A notice of appeal must be filed within 60 days from the date of entry of judgment unless the time is extended by the filing of a valid notice of intention of moving for a new trial. Rules on Appeal, 2 and 3. A notice of intention to move for a new trial which is not served and filed within the time specified in Section 659 of the Code of Civil Procedure is not such a valid notice of intention as is required by Rule 3(a)(2) Rules on Appeal and therefore does not serve to extend the time within which a notice of appeal must be filed. King v. Wilson, 101 Cal.App.2d 242, 243, 225 P.2d 270. The trial court made no order on the motion for new trial. On February 16, 1953, appellant herein filed with the clerk his notice of appeal. Unless the time was extended by valid proceedings for new trial this filing of the notice of appeal was late and this Court has no jurisdiction of the appeal. Respondent, therefore, basing his motion upon the foregoing record, has filed his motion to dismiss the appeal herein upon the ground this Court has no jurisdiction thereof. The motion to dismiss must be granted.

The following sections of the Government Code are material to the decision of the motion. Section 14 provides that 'shall' as used in the code is mandatory and 'may' is permissive. Section 24000(c) lists county clerks, ex officio clerks of the superior court, as county officers. Section 6100 declares that officers of a county shall not perform any official service unless upon the payment of the fees prescribed by law for the performance of the services, with certain exceptions with which we are not here concerned. Section 24350.5 provides that county officers shall, and township officers may, demand the payment of all fees in civil cases, in advance. Section 6110 provides that upon payment of the fees provided by law, the officer shall perform the services required. Section 26820 provides that the county clerk shall charge and collect the fees fixed for service performed by him. Section 26830 provides that the fee for filing a notice of intention to move for a new trial in a civil action is $3.

It is of course the policy of appellate courts to decide all matters appealed to them upon the merits, and such courts are reluctant to dismiss appeals for any oversight in procedural matters, but it is well settled that in respect of the time of filing no forgiveness of oversight is possible since the appeal must be filed in time or the appellate court has no jurisdiction. In this case it cannot be said that the clerk of the trial court acted in any wise except in strict accordance with the law which governs him. The foregoing code sections make it clerk that the legislature has mandatorily required that filing fees in civil actions must be paid in advance. Not only do they declare that they shall be so paid and that the clerk shall so collect them before he shall perform any official act, that is to say, receive for filing and file any document for the filing of which the payment of a fee is required, but the legislature has also provided, by way of interpretation of its own language, that the word 'shall' is mandatory. It further illustrated its meaning in the provisions governing county clerks as to filings and fees therefor, by setting up a distinction between them and township officers,...