I dissent.
It is my opinion that plaintiff had written notice of the entry of judgment within the meaning of section 946 of the Code of Civil Procedure and that his right to preserve the attachment by taking an appeal was therefore lost five days after the service of the notice.
Judgment for defendant was entered on November 26, 1951. On December 4, 1951, plaintiff served and filed notice of intention to move for a new trial, and on January 3, 1952, defendant served and filed notice of motion to vacate the attachment on the ground that “judgment had been rendered in favor of the defendant and no notice of appeal or undertaking on appeal had been filed within five days from and after the entry of said judgment.” At no time thereafter did plaintiff perfect an appeal from the judgment. Defendant’s motion was denied on February 6, 1952, after plaintiff’s motion for a new trial had been granted. Section 946 of the Code of Civil Procedure provides that an attachment may be continued in force if an appeal is perfected “within five days after written notice of the entry of the order appealed from.” Whether or not plaintiff’s notice of motion for a new trial constituted a waiver of the right to written notice (see Prothero v. Superior Court, 196 Cal. 439, 444 [238 P. 357], defendant’s notice of motion to vacate the attachment, which recited that “judgment had been rendered in favor *10of defendant, ’ ’ constituted written notice of the entry of the judgment within the meaning of section 946. The right to preserve the attachment by taking an appeal was therefore lost five days after the service of the notice on January 3,1952.
Section 946 assures the plaintiff knowledge of the entry of judgment and fixes the date for the commencement of the running of the five-day period. These purposes were accomplished when defendant served and filed her notice of motion to vacate the attachment. The only other possible purpose for the notice of the entry of judgment is to bring home to the plaintiff that the defendant is asserting his right to have the attachment dissolved if an appeal is not perfected in five days. (See Byrne v. Hudson, 127 Cal. 254, 257 [59 P. 597].) Since defendant’s notice expressly called plaintiff’s attention to the fact that defendant was relying on the entry of judgment to establish her right to dissolution of the attachment, it could not have subserved this purpose better. The majority opinion states, however, that “the fact that defendant incidentally indicated to plaintiff, by serving and filing her notice of motion to dissolve the attachment, that judgment had been entered is not sufficient compliance with the statutory requirement that written notice be given to start the running of the five-day period. (See Byrne v. Hudson (1899), 127 Cal. 254, 257 [59 P. 597].)” In the Byrne case the judgment provided that if plaintiff did not pay defendant a certain sum of money within 20 days of written notice of entry of judgment she would lose her equity of redemption. Defendant served on plaintiff a notice of intention to move for a new trial, reciting that the judgment had been entered. The court held that this notice of motion was not sufficient to start the running of the 20-day period. ‘ ‘ The question arose out of the express terms of the judgment, which required ‘written notice of the entry of this judgment.’ We think, therefore, that as appellant’s right in the premises depended upon the commencement of the running of a certain period of time mentioned in the judgment, and as her title was to be forfeited unless a certain act was done within that period of time, she was entitled to a notice expressly intended for the purpose of starting the period of time mentioned in the judgment, and that a mere incidental recital in a notice of a motion for a new trial, given for an entirely different purpose, was not a sufficient compliance with the terms of the judgment.” (127 Cal. at 257.) In the present case, however, defendant’s notice of motion was not given *11for a purpose foreign to the attachment, but was related directly to the effect of the entry of judgment on its continuance. The fact that judgment had been entered was not recited merely incidentally, but as the very basis for the intended motion. Defendant may have been premature in noticing her motion to dissolve the attachment, but by doing so she gave plaintiff all the notice of the entry of judgment to which he was entitled. When he failed within five days to perfect an appeal from the judgment, defendant was entitled to have the attachment dissolved.
Appellant’s petition for a rehearing was denied January 27, 1954. Carter, J., and Traynor, J., were of the opinion that the petition should be granted.