Godfrey

More than three years after the date of the affirmance by this court of a judgment of conviction against him, defendant made a motion in the trial court to vacate said original judgment. The motion was denied. Thereupon defendant appealed to this court from the order denying such motion. The instant proceeding is a motion made in this court by respondent to dismiss said appeal on the ground that the motion to vacate the judgment was made by defendant in the trial court “too late,” and, therefore, that the order denying such motion was not appealable.

By section 1237 of the Penal Code, among other things, it is provided that an appeal may be taken by a defendant “from any order made after judgment affecting the substantial rights of the party.” In several cases within this state the rule there enunciated has been followed. (See Ward v. Dunne, 136 Cal. 19 [ 68 Pac. 105 ]; People v. Perez, 9 Cal. App. 265 [ 98 Pac. 870 ]; People v. O’Brien, 4 Cal. App. 723 [ 89 Pac. 438 ]; People v. McNulty, 95 Cal. 594 [ 30 Pac. 963 ].) As it is manifest that the order in question was made after final judgment, and that it affected substantial rights of defendant, the right to appeal from the order…