Shonkoff v. Dant Inv. Co.
| Decision Date | 22 January 1968 |
| Citation | 65 Cal.Rptr. 463,258 Cal.App.2d 101 |
| Court | California Court of Appeals Court of Appeals |
| Parties | Alta SHONKOFF, Plaintiff and Appellant, v. DANT INVESTMENT CO., a corporation, Defendant and Respondent. Civ. 25088. |
Marvin E. Lewis, Lewis & Stein, San Francisco, for appellant.
Bledsoe, Smith, Cathcart, Johnson & Rogers, San Francisco, for respondent.
Jury verdict and judgment were for defendant in this personal injury action. Plaintiff's motion for new trial was denied. Her notice of appeal was filed within 60 days of notice of entry of judgment. But it recites that she appeals 'from the order denying new trial.' On the ground that the order specified in the notice is not appealable, defendant moves to dismiss the appeal.
Since the 1915 amendment (Stats.1915, c. 116, p. 209) of the statute defining appealable orders (Code Civ.Proc., § 963) there has been no right to appeal from an order denying new trial in a civil case (3 Witkin, Cal.Proc., 2169). The practice of appealing both from the judgment and the order denying new trial has been repeatedly condemned by dismissal of the latter appeal. The Supreme Court has admonished 'members of the bar generally to cease appealing from such an obviously nonappealable order' in conjunction with an appeal from the judgment (Rodriguez v. Barnett, 52 Cal.2d 154, 156, 338 P.2d 907, 908).
Here, however, the only notice of appeal is directed to the order denying new trial. The time for appeal from the judgment has passed. If the motion to dismiss be granted, plaintiff will be denied all access to the appellate courts. The affidavit of plaintiff's attorney avers that he intended to appeal from the judgment, but that through inadvertence of himself and his secretary, the notice filed was directed to the order denying new trial.
In a recent case (Vibert v. Berger, 64 Cal.2d 65, 48 Cal.Rptr. 886, 410 P.2d 390) the Supreme Court refused to dismiss the appeal in a comparable situation. There plaintiff had appealed from an order sustaining demurrer without leave to amend. Such an order is not appealable, and appeal lies only from the ensuing judgment of dismissal. The court, however, obeyed the mandate requiring a notice of appeal to be liberally construed in favor of its sufficiency (Cal.Rules of Court, Rule 1). Vibert provides for an exception to the rule requiring dismissal 'where the notice can be interpreted to apply to an existing appealable order or judgment, if no prejudice would accrue to the respondent' (pp. 67--68, 48 Cal.Rptr. p. 888, 410 P.2d p. 392).
We recognize that an appeal from an order sustaining demurrer without leave to amend goes to...
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Walker v. L.A. County Metro. Transp. Auth.
...(see supra, § 123), but a notice specifying the order may be deemed to constitute an appeal from the judgment. (Shonkoff v. Dant Inv. Co. [(1968]) 258 C.A.2d [101,] 102 .) See Wilbur v. Cull (1954) 127 C.A.2d [Cal.App.2d] 655, 657, 274 P.2d 424, supra, § 459 [later notice to prepare transcr......
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Walker v. MTA
...ground that the denial of a new trial is not an appealable order. The Court of Appeal declined to follow Shonkoff v. Dant Inv. Co. (1968) 258 Cal.App.2d 101, 102, 65 Cal.Rptr. 463, which had treated a notice of appeal from an order denying a new trial as an appeal from the underlying appeal......
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Alioto Fish Co. v. Alioto
...9, 1992, is construed as an appeal of the underlying April Sanctions Order, it is untimely. (See, e.g., Shonkoff v. Dant Inv. Co. (1968) 258 Cal.App.2d 101, 102, 65 Cal.Rptr. 463.) Courts are split as to whether an order denying reconsideration (Code Civ.Proc., § 1008) is appealable. (Eisen......
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Martin v. Johnson
...a device has occasionally been resorted to by courts in this state under certain circumstances. (See, e. g., Shonkoff v. Dant Inv. Co., 258 Cal.App.2d 101, 65 Cal.Rptr. 463, 464.) In Shonkoff, plaintiff appealed solely " 'from the order denying new trial.' " (Id.) The court recognized that ......