JUDGES: Paterson, J. McKinstry, J., and Searls, C. J., concurred.
OPINION
PATERSON, Judge
Judgment was entered for defendant on demurrer.
The motion to dismiss the appeal herein on the ground that it was prematurely taken must be granted. The notice of appeal was filed and served on November 2, 1885. The judgment was not entered until December 10, 1885. It is not dated, but it is indorsed, "Judgment recorded December 10, 1885, nunc pro tunc as of October 30, 1885." The judgment is not signed by the judge, and there is no order directing the entry thereof as of October 30, 1885; but if it be presumed that such an order was made, it would not avail the appellant.
The rights of the parties in respect to an appeal are determined by the date of the actual entry of the judgment, and they cannot be affected by the entry of the judgment nunc pro tunc as of prior date. The time to appeal begins to run from the time of the actual entry. (Code Civ. Proc., sec. 939; In re Fifteenth Avenue Extension , 54 Cal. 179; Rubber Co. v. Goodyear, 6 Wall. 155; 2 Hayne on New Trial and Appeal, sec. 204.)
The appeal is dismissed.