I concur in the conclusion reached in the majority opinion, but since the rule announced therein is directly contrary to two recent decisions of this court (Estate of Hanley, 23 Cal.2d 120 [142 P.2d 423], and People v. Lewis, 219 Cal. 410 [27 P.2d 73]), I believe, for the sake of consistency and uniformity in the law, these cases should be overruled.
This ease presents the simple issue of whether a person loses his right to appeal when the notice of appeal is filed late due to no fault on his part. There is no basis whatsoever for declaring one rule for civil cases and another for criminal eases, and as I read the majority opinion it does not attempt to make any such artificial distinction, although it is said therein: “It would be absurd to hold in a criminal case that the state may extend the right of appeal contingent upon timely pursuit thereof and then deny such fundamental right *369because the state’s employees were remiss in complying with the state’s law.” (Emphasis added.) Why a criminal case is mentioned is hard to grasp. It would be equally absurd in a civil case.
This case presents one of the absurd results (denial of the right of appeal) which necessarily flows from the rule stated in Estate of Hanley, supra, and People v. Lewis, supra. In my dissenting opinion in Estate of Hanley, supra, I called attention to the absurd results which would flow from the rule there announced. That case holds (or states by way of dictum) that there are no circumstances whatsoever which will save a person from losing his right of appeal in either a civil or criminal case where the notice is filed late. (See, 17 So.Cal.L.Rev. 91.) The Estate of Hanley, supra, is a civil case and it is there said (p. 122): “In examining the appellant’s position, it is immaterial whether the misrepresentations concerning the date upon which the order was filed were wilful or inadvertent, whether the reliance thereon was reasonable or unreasonable, or whether the parties seeking to dismiss are acting in good faith or not. It may be assumed that the appellant has presented grounds for relief which would be sufficient if relief could be granted. But the requirement as to the time for taking an appeal is mandatory, and the court is without jurisdiction to consider one which has been taken subsequent to the expiration of the statutory period. (Citations.) In the absence of statutory authorization, neither the trial nor appellate courts may extend or shorten the time for appeal (citation), even to relieve against mistake, inadvertence, accident or misfortune. (Citations.) Nor can jurisdiction be conferred upon the appellate court by the consent or stipulation of the parties, estoppel, or waiver. (Citations.) If it appears that the appeal was not taken within the 60-day period, the court has no discretion but must dismiss the appeal of its own motion even if no objection is made.” (Emphasis added.) In People v. Lewis, supra, a criminal case, it is said (p. 414) : “The time for filing notice of appeal cannot be extended by stipulation or other action of the parties to the proceeding, or by order of the court. (See, cases cited, supra.) The execution and filing of notice of appeal is done by a party or his attorney, and is not an act of the court. Where through inadvertence or mistake of a party or his attorney notice is not filed within the time limited by law, neither the trial court nor appellate court can afford relief thereafter *370by permitting filing of a tardy notice.” (Emphasis added.)
Those eases in announcing that doctrine stand practically alone in the United States. (See 149 A.L.R 1261, note on Estate of Hanley; 32 Cal.L.Rev. 84.) In fact in this state we have the well-reasoned case of Moyle v. Landers, 78 Cal. 99, 106 [20 P. 241, 12 Am.St.Rep. 22], where this court said: “To allow this motion [the motion to dismiss where the delay in filing the notice was due to the fraud of respondent] to prevail under such circumstances would be a travesty on justice, and bring the administration of the law into just reproach.
“We are met with the claim, on the part of the respondents, that this is a purely jurisdictional question, that this court can only obtain jurisdiction in the way provided by law, and that it cannot be conferred by the consent or voluntary submission of the parties, and in support of this contention they cite Bonds v. Hickman, 29 Cal. 462; Judson v. Love, 35 Cal. 466; Shartzer v. Love, 40 Cal. 96; Reed v. Allison, 61 Cal. 465.
“As we have already said, the rule stated in these cases must be conceded to be the true one, but in our judgment they do not meet the case presented here.
“There was no question of fraud in either of the cases cited. The appellant simply failed to take the necessary steps to perfect the appeal, and in one of the eases there was a stipulation that the notice had been given, but this was contradicted by the certificate of the clerk and affidavit. We think it may very properly be questioned whether an express stipulation of the parties, waiving the steps necessary to perfect an appeal, or that such steps have been taken, made in good faith, should not be binding upon them and confer jurisdiction. (Hayne on New Trial, sec. 210, p. 642, and cases cited.)
“But this is not the question before us. The question here is, whether parties who have fraudulently prevented the service of the notice, by the concealment of material facts, and by a failure to enter their objection to the jurisdiction of the court at the proper time, and for the fraudulent purpose of preventing the proper service of the same have delayed making their objection until it was too late to remedy the defect, should not now be estopped to attack the notice given or to question the jurisdiction of the court.
“We are of the opinion that the respondents should not now be heard to question the jurisdiction of this court for *371the want of the service of a proper notice of appeal under the circumstances of this case.” (Emphasis added.)
The ease at bar demonstrates the absurd results that may flow from the doctrine of the Estate of Hanley. Here we do not even have any fraud or intentional misconduct on the part of the state’s employees. They were merely negligent in transmitting the notice of appeal to the clerk of the superior court. The situation is not distinguishable from that presented in the Estate of Hanley, yet a different result is reached. While I agree with that result, it is diametrically opposed to the Estate of Hanley, and that case must be overruled. Otherwise the decisions of this court are inconsistent, and the law is in a state of hopeless confusion. The majority of this court in the Estate of Hanley sought to ameliorate the dire consequences which would flow from the pronouncement of a rule that would result in a “travesty on justice” by suggesting that the injured party could seek equitable relief, a wholly inadequate remedy, as I pointed out in my dissent in that case. In the case at bar it must be and is admitted that such remedy is wholly useless, thus overruling, but silently, the Estate of Hanley on this phase of the problem.
The majority opinion does not discuss the effect of the late filing of a notice of appeal as depriving the appellate court of jurisdiction to hear the appeal. This was the basis of the decisions of this court in People v. Lewis, supra, and Estate of Hanley, supra; that is, that unless a notice of appeal is filed within the time prescribed by statute, the appellate court lacks jurisdiction to hear and determine the cause, and that this is true regardless of the reason or cause for the failure to file such notice with the superior court. The; gist of the majority opinion appears to be that where a notice of appeal in a criminal case is delivered to an employee of the state for filing within the time prescribed by statute for such filing, such delivery will be considered constructive filing. I cannot agree with this line of reasoning. In effect it makes every state, county and city employee, with whom a defendant may come in contact, a deputy county clerk, as the notice must be deemed filed when it is delivered to him. This is indeed a fiction which is equally as absurd as the reasoning in the Lewis and Hanley cases and may lead to just as dire consequences. No authority is cited in support of this unique theory, and I am sure none can be found. To my *372mind a much sounder theory on which to base the decision would be to hold that when the failure to file a notice of appeal is the result of fraud, mistake, inadvertence or neglect on the part of the adverse party and there is no negligence or lack of diligence on the part of the appellant, the time to file the notice of appeal is extended and the appellant loses no rights thereby. This is the general rule and is supported by a wealth of authority (see 149 A.L.R. 1261, and 32 Cal.L.Rev. 84) including the two dissenting opinions in Estate of Hanley, supra.