Sheta v. Grahm
| Decision Date | 12 December 1957 |
| Citation | 156 Cal.App.2d 77,318 P.2d 756 |
| Parties | D. SHETA, Plaintiff and Appellant, v. Alan GRAHM, doing business as Associated Consumers, and Associated Consumers, Defendants and Respondents. Civ. 22850. |
| Court | California Court of Appeals Court of Appeals |
William John Hyland, III, Beverly Hills, for appellant.
David M. Zerner and Philip Silverman, Los Angeles, for respondents.
This is a motion to dismiss the appeal on the ground that the notice of appeal was not filed within the time required by the Rules on Appeal in view of the provisions of Rule 2(b)(2).
Plaintiff brought this action as an assignee of a Nevada corporation. Prior to filing their answer defendants made a motion to dismiss on the ground, inter alia, that the plaintiff had forfeited its powers, rights and privileges in this state because of nonpayment of its franchise tax. Rev. & Tax.Code, §§ 23301 and 23302. In support of this motion, defendants submitted the affidavit of one of their attorneys in which he stated that all at times mentioned in the second amended complaint plaintiff's assignor, Eldindia Corporation, was a Nevada corporation; that the right of said corporation to exercise corporate rights and privileges in the State of California was forfeited on September 1, 1950, for failure to pay taxes due to the Franchise Tax Board of the State of California, and that 'said corporation has never since been and is not now reinstated or relieved from said forfeiture in California.' The affiant attached a certificate of the Secretary of State of California in support of his averments. No counteraffidavit was filed.
On July 23, 1957, the trial court granted the motion to dismiss and directed the attorney for the defendants to prepare a formal order of dismissal. The signed 'order dismissing defendants and judgment for their costs' was filed August 1, 1957, and entered August 14th. Notice of appeal was filed October 11, 1957.
It is respondents' position that the time for appeal started to run on August 1, 1957, the date on which the formal order of dismissal was filed, and that since the notice of appeal was not filed until more than 60 days thereafter, it was too late, and the appeal must be dismissed.
Appellant contends, however, that the time for appeal did not start to run until the entry of judgment on August 14, and that since his notice of appeal was filed on October 11 he is in ample time.
Rule 2(b)(2), Rules on Appeal reads: 'The date of entry of an appealable order which is entered in the minutes shall be the date of its entry in the permanent minutes, unless such minute order as entered expressly directs that a written order be prepared, signed and filed, in which case the date of entry shall be the date of filing of the signed order.' (Emphasis added.)
As pointed out in Herrscher v. Herrscher, 41 Cal.2d 300, 304, 259 P.2d 901, 904, 'The language of this rule is clear and leaves no room for interpretation.' The Herrscher case, procedurally, is closely analogous to the one at bar. In the Herrscher case, defendant filed a cross-complaint which brought in additional parties. Plaintiff made a motion to strike the cross-complaint; the motion was granted, the minute order, as here, containing a direction to counsel to prepare a formal order. An appeal was taken. In due course, a motion to dismiss the appeal was made. In passing on the matter, the court announced principles that are pertinent to the disposition of the motion in the instant case. The court stated: 'An order granting a motion to strike a cross-complaint from the files is equivalent to an order dismissing the cross-complaint. [Citation.] Where the parties to the cross-complaint are not identical with the parties to the original action, the order amounts to a final adjudication between the cross-complaints and cross-defendants and is appealable. [Citations.] It has long been the rule in this state that an order of dismissal is to be treated as a judgment for the purposes of taking an appeal when it finally disposes of the particular action and prevents further proceedings as effectually as would any formal judgment. [Citation.]
'The time for filing a notice of appeal is determined by the provisions of Rule 2 of the Rules on Appeal, namely, 'within 60 days from the date of entry of the judgment. * This rule followed the provisions of former Section 939 of [156 Cal.App.2d 80] the Code of Civil Procedure which it superseded. Difficulties in practice were encountered in determining what was meant by the phrase 'date of entry.' Did it mean the date when the order was set forth in the so-called rough minutes of the court, or did it mean the date when it was entered in the permanent minutes? What was the effect of an appealable order evidenced by a minute entry which was followed later by a written order or judgment filed? It has been decided that where findings of fact or a further or formal order is required, an appeal does not lie from a minute order. [Citations.] Rule 2(b)(2) was adopted to clarify this situation * * *
(Supra, 41 Cal.2d 303-304, 259 P.2d 903.)
Applying these principles to the case at bar, it is apparent that an order dismissing the complaint herein is equivalent to the order dismissing the cross-complaint in the Herrscher case. The order of dismissal herein amounts to a final adjudication between the parties, just as the order dismissing the cross-complaint in the Herrscher case amounted 'to a final adjudication between the cross-complainants and cross-defendants' therein. Such 'an order of dismissal,' as stated in the Herrscher case, 'is to be treated as a judgment for the purposes of taking an appeal' since it finally disposed of the action and prevented 'further proceedings as effectually as would any formal judgment.' It is thus clear that the order of dismissal is appealable. Herrscher v. Herrscher, supra.
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