Defendant, Plumbers' Union No. 492, appeals from an order made by the superior court of San Joaquin County, denying appellant's motion to recall and vacate the execution issued in said action.
It appears from the bill of exceptions that plaintiff commenced an action in said superior court on December 6, 1912, against a number of defendants, including appellant, and, after service of summons, no appearance having been entered by this appellant, on application of plaintiff's attorney, made January 4, 1913, the clerk of said court entered the default of defendant on that day, and, on January 23, 1915, the clerk, on motion of plaintiff's counsel, entered judgment in favor of plaintiff against the several defendants, including appellant. The execution was in the usual form and was issued on January 23, 1915. The motion to recall the execution was heard and denied on May 24, 1915, and, as stated in the notice of appeal, the order was "duly entered on the twenty-fifth day of May, 1915, in minute-book No. 3 of department 3 at page 711 of the records of said court." Notice of appeal was filed August 6, 1915.
Respondent makes the point that the appeal was taken more than sixty days after said order was made and entered in the minutes of the court, and must be dismissed. (Citing Code Civ. Proc., sec. 939; Doyle v. Republic Life Ins. Co., 125 Cal. 15, [57 P. 667]; Harper v. Hildreth, 99 Cal. 265, [33 P. 1103];McCourtney v. Fortune, 42 Cal. 387.) Appellant makes no reply to the point nor do we think reply can be successfully made.
The appeal is dismissed.
Hart, J., and Burnett, J., concurred. *Page 55