Estate of KATE HANLEY, Deceased. KATHARINE G. HANLEY, Appellant, v. KATHARINE G. HANLEY, as Executrix, etc., et al., Respondents, 23 Cal. 2d 120

EDMONDS, J. The First Account and Report in the administration of the estate of Kate Hanley was approved by an order filed on December 12, 1941. A notice of appeal was filed by Katharine G-. Hanley, who, the court determined by the order, does not own money inventoried as property of the estate. Certain legatees under the will of Mrs. Hanley, by a motion to dismiss the appeal, have challenged the jurisdiction of this court to entertain the matter upon the ground that the notice was not filed until February 11, 1942, one day beyond the applicable statutory period.

Katharine Hanley is also executrix of the estate, but in presenting the question of her asserted ownership of the money in controversy, is represented by different counsel from the attorney who appears for her in her administrative capacity. The record shows that on December 18th the attorney acting for her as executrix served upon her personal counsel a notice reciting that the order approving the account had been filed on December 17th. A few days later, according to the affidavits of her personal counsel, one of them, in a telephone conversation, was told by the attorney representing Mrs.

Hanley as executrix that the date stated in the notice was correct and the time for appeal should be computed accordingly. Late in the afternoon of February 10th, counsel upon whom the notice had been served discovered that the order was filed on December 12th, not December 17th. It was then too late to file a notice of appeal that day but one was served and filed the following morning. Since that time the appellant has proceeded in good faith with the prosecution of her appeal by the timely filing of the transcript and an opening brief.

Basing her opposition to the motion upon these facts, the appellant asserts that under appropriate circumstances, such as innocent and justifiable reliance upon misrepresentations, one may be relieved from the effect of delay in filing a notice of appeal; or, adopting a different theory, the respondent whose misrepresentations were the cause of the delay may be estopped to take advantage of it by ¿ motion to dismiss. An appeal from an order settling the account of an executrix must be taken within 60 days from its entry. (Code Civ. Proc., sec. 939; Prob.

Code, see. 1233.) The filing of a signed decree is equivalent to entry “at length in the minute-book of the court.” (Prob. Code, see. 1221.) 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. (Estate of Smead, 12 Cal.2d 20 [82 P.2d 182]; Lawson v. Guild, 215 Cal. 378 [10 P.2d 459]; Lane v. Pellissier, 208 Cal. 590 [283 P. 810]; Lancel v. Postlethwaite, 172 Cal. 326 [156 P. 486]; Estate of Brewer, 156 Cal. 89 [103 P. 486]; Estate of Murphy, 36 Cal.App.2d 653 [98 P.2d 523]; Irving v. Sheetz, 26 Cal.App.2d 751 [80 P.2d 502]; Le Cyr v.

Dow, 26 Cal.App.2d 459 [79 P.2d 777]; Estate of Vizelich, 123 Cal.App. 651 [11 P.2d 870]; Bates v. Ransome-Crummey Co., 42 Cal.App. 699 [184 P. 39].) In the absence of statutory authorization, neither the trial nor appellate courts may extend or shorten the time for appeal (Bryant v. Superior Court, 16 Cal.App.2d 556 [61 P.2d 483]), even to relieve against mistake, inadvertence, accident, or misfortune (People v. Lewis, 219 Cal. 410 [27 P.2d 73]; Williams v. Long, 130 Cal. 58 [62 P. 264, 80 Am.St.Rep. 68]; Winchester v. General Cab Co., 8 Cal.App.2d 360 [47 P.2d 1116]; Estes v.

Chimes, 40 Cal.App.2d 41 [104 P.2d 74] ). Nor can jurisdiction be conferred upon the appellate court by the consent or stipulatioh of the parties, estoppel, or waiver. (Stipulation: Land v. Johnston, 156 Cal. 253 [104 P. 449]; Langan v. Langan, 89 Cal. 186 [26 P. 764]. Estoppel: Estate of Pearsons, 119 Cal. 27 [50 P. 929]; but cf. Moyle v. Landers, 78 Cal. 99 [20 P. 241, 12 Am.St.Rep. 22], decided when service of notice of appeal was required under Code Civ. Proc., sec. 940, prior to 1921. Waiver: Aspegren & Co., Inc. v.

Sherwood, Swan & Co., 199 Cal. 532 [250 P. 400]; Estate of Brewer, supra; Estate of Murphy, supra. For a full discussion of these rules, see comment, 30 Cal.L. Rev. 433, 448.) 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. (Estate of Brewer, supra, at p. 90; Langan v. Langan, supra, at p. 195; Estate of Pearson, supra, at p. 29; Estate of Murphy, supra, at p. 655; Smith v.

Questa, 58 Cal.App. 1 [207 P. 1036].) In strictly adhering to the statutory time for filing a notice of appeal, the courts are not arbitrarily penalizing procedural missteps. Relief may be given for excusable delay in complying with many provisions in the statutes and rules on appeal, such as those governing the time within which the record and briefs must be prepared and filed. These procedural time provisions, however, become effective after the appeal is taken.

The first step, taking of the appeal, is not merely a procedural one; it vests jurisdiction in the appellate court and terminates the jurisdiction of the lower court. And of particular importance is the fact that the security of rights of contract, titles to property, and the status of persons rest upon- certainty in the finality of judgments occasioned by the lapse of the statutory time for the taking of an appeal. It by no means follows that one who has failed to file a notice of appeal within the statutory time is always without remedy.

For example, where after a judgment has been rendered against a person he is entitled to take proceedings looking to its reversal or modification and he is prevented from doing so by the fraud or duress of the other party until it is too late, or when he has been prevented from taking an appeal because of circumstances over which he has no control, he is entitled to equitable relief from the judgment. (See Rest., Judgments, see. 125, comment b; Id., sec. 112.) Such relief may be invoked in the unusual case of fraud or hardship, without interfering with the rules governing jurisdiction of an appeal.

The motion is granted and the appeal dismissed. Gibson, C. J., Traynor, J., and Schauer, J., concurred.