Socol

I dissent.

The only rational and fair interpretation of rule 3(b) of the Rules on Appeal is that where the denial of a motion to vacate a judgment is not made within 120 days after the entry of judgment, then the time to appeal is extended for 30 days after the 120 days, making a total of 150 days.

The rule is fairly and reasonably susceptible of that construction. The whole purpose of it is to provide an extension of time to appeal where a motion to vacate a judgment is made. No extension is achieved if the time within which the motion may be passed upon and for taking an appeal expire simultaneously. If the motion is denied or not decided within 120 days, the time for filing notice of appeal is extended until “30 days after entry of the order denying the motion ... or 120 days after entry of the judgment.” Grammatically, the clause “30 days after” modifies and is applicable to both situations, a denial of the motion by the court and a failure to act within 120 days.

That such construction should be placed upon the rule is clear to me. It is conceded by the majority that to construe it otherwise “constitutes a pitfall for the unwary.” No rule or law should be given an…

Respondent moves to dismiss plaintiffs’ appeals from a judgment of the superior court and from an order denying their motion to vacate the judgment and enter a new and different judgment under section 663 of the Code of Civil Procedure.

All of the following events took place in 1948. Judgment was entered in the trial court on April 28th. Notice of entry was filed by respondents on May 8th and by appellants on May 24th. On May 17th, appellants filed notice of intention *294 to move for an order vacating the judgment and entering a new and different judgment under subdivision 1 of section 663 of the Code of Civil Procedure. * On September 13th, the trial court filed a written order denying the motion. Appellants filed on September 24th, a notice of appeal from the judgment and on October 16th, a notice of appeal from the order denying the motion to vacate the judgment. Respondent moves to dismiss the appeals on the grounds that (1) the appeal from the judgment was taken too late and (2) the order denying the motion to vacate under section 663 is not an appealable order.

1. The appeal from the judgment. Rule 3(b) of the Rules on Appeal provides: “When a motion to vacate a judgment…