Mann v. Haley

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Docket Number

3,334

Attorney(S)

Sharpstein and Hastings, for Appellants. Chipman, for Respondents, moved to dismiss the appeal, on the ground that it was taken too late. He argued that the modification of the judgment was nothing more than an order subsequent to judgment, and was not appealable after sixty days, and cited Calderwood v. Peyser , 42 Cal. 111.

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MANN et al. v. HALEY et al.

OPINION By the Court:

A judgment was originally rendered in the action on the 11th day of October, 1870. As the result of a motion for a new trial, a modification of this judgment was directed by the Court below on March 30th, 1871. On March 5th, 1872, an appeal was taken " from the judgment * * * entered * * * on the 30th day of March, A. D. 1871." Objection is now made by the respondent, that the appeal, having been taken more than one year after the 11th day of October, 1870, is too late, and must be dismissed on that ground. The modification of a judgment, made as the result of a motion for a new trial, is in effect the rendition of a new judgment, and a party desiring to have it reviewed may appeal at any time within one year after its rendition.

Motion to dismiss the appeal denied, and cause continued, with leave to the respondent to suggest a diminution of the record, if he be so advised.

MANN et al. v. HALEY et al.

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