even after the filing of a stay bond on appeal, the trial court had power pending the appeal to grant a new trial. (Knowles v. Thompson, 133 Cal. 245, [65 Pac. 468]; Union Collection Co. v. Oliver, 162 Cal. 755, [124 Pac. 435].) The result of an order granting a new trial was to set the entire case at large and to give the trial court authority to try the case anew. (Miller & Lux v. Enterprise etc. Co., 169 Cal. 419, [147 Pac. 567].)

In 1915 the legislature amended sections 650, 659, and 939 of the Code of Civil Procedure, [Stats. 1915, pp. 201, 205, 207]. Under section 650, when a party desired to have exceptions taken at the trial settled in a bill of exceptions, he might at any time within ten days after notice of the entry of the judgment, or such further time as might be allowed, serve his proposed bill of exceptions. If he intended to move for a new trial he was required within ten days after receiving notice of the entry of the judgment to file with the clerk and serve upon the adverse party a notice of his intention so to move. (Code Civ. Proc., sec. 659.) He might appeal from the judgment within sixty days after its entry, but if proceedings on motion for new trial were pending, the time to appeal from the judgment was extended for thirty days after the determination of the new trial proceedings. (Code Civ. Proc., sec. 939.) Section 963 of the Code of Civil Procedure was also amended, [Stats. 1915, p. 209], and the privilege of appealing from a new trial order, except in specific cases of which this is not one, was withdrawn. In summarizing these provisions of the code, reference has been made only to those relating to cases tried by the court without a jury.

[2] Under these amended sections the time of serving notice of motion for a new trial and to propose a bill of exceptions is made dependent upon the service of notice of the entry of the judgment, while the time to appeal begins to run from the time of entry of judgment. The code provides that upon the entry of the judgment it shall be docketed, and when so docketed the judgment becomes a lien upon the real property of the judgment debtor. The docket is a public record and as such imparts notice to all persons interested. (Code Civ. Proc., sees. 668, 671-673.) [3] The party aggrieved by a judgment under these amended provisions of the statutes was given the election

of appealing directly within sixty days from the entry of the judgment, or, if he desired to move either for a new trial or to vacate the judgment in the trial court, he might do so. If he did so within the sixty days allowed for an appeal, the time within which he might appeal was extended automatically until thirty days after the determination of the new trial proceedings. No such provision for extension of time was made in the statute because of the pendency of proceedings to vacate the judgment on the ground that the conclusions of law were not supported by the findings. [4]

The losing party was not required to move for a new trial, until he received notice of the entry of the judg ment, unless the record showed he had waived such notice. He was not required to wait, however, until he received the notice of entry, but might have given notice of his intention to move for a new trial at any time after judgment Of his own motion, therefore, he might have extended the time within which to appeal by serving notice of motion for new trial at any time within the sixty-day limitation for appeal, even though he had not received notice of the entry of the judgment. [5] If at the expiration of the sixty-day period within which an appeal might be taken, no notice of intention to move for a new trial was given, in other words, if there was no proceeding for a new trial pending, the time to appeal from the judgment elapsed, and the privilege of appealing from the judgment or of having a new trial order reviewed on appeal terminated. [6] There is no statutory requirement by which the prevailing party in a suit is required to give notice of the entry of the judgment. Because there is no such provision, the judgment debtor might in effect indefinitely extend the time of appeal by waiting until he was served with notice of the entry of judgment, and might appeal from the judgment at the expiration of six months or a year or, for that matter, ten years from its entry, if it should be held that the right of appeal does not terminate at the expiration of sixty days after the entry of judgment if no proceedings for a new trial are then pending.

In the particular case the findings of fact and conclusions. of law were filed October 19, 1915. Judgment was entered November 24, 1915; the sixty days within which an appeal might have been taken expired January 23, 1916. Notice of

intention to move for a new trial was dated and presumably served February 21, 1916, or twenty-nine days after the time to appeal from the judgment had expired without new trial proceedings having been commenced. Motion for new trial was denied April 14, 1916, and notice of appeal was served and filed April 24, 1916, or more than three months after the time to appeal had elapsed.

On behalf of the appellants it is argued that under the rule of liberal construction doubtful clauses affecting the right of appeal should be construcd in favor of the right. It does not appear that the language of section 939 is doubtful. It provides that the appeal shall be taken within sixty days, but the time is extended if, or as the appellants contend, when, new trial proceedings are pending. In the present case no such proceedings were pending when the time of appeal elapsed.

[7] It is argued that under the construction given to section 939 of the Code of Civil Procedure it is unconstitutional as in violation of section 1 of article XIV of the constitution of the United States, because the appellants are deprived of their property without due process of law and are denied equal protection of the laws. Similar contentions have failed to meet the approval of courts. The matters of motions for new trial and appeal are entirely within the control of the legislature. It might altogether abolish the right to move for a new trial, as it has abolished the privilege of appealing from an order made upon a motion for a new trial. (Lancel v. Postlethwaite, 172 Cal. 329, [156 Pac. 486]; Woodruff v. Colyear, 172 Cal. 440, [156 Pac. 475].)

[8] It is argued because it is the duty of the plaintiff diligently to prosecute an action to a finality, that so long as the right of the defendant to move for a new trial or to move to vacate the judgment exists, it does not become final, but citation of authority is not necessary to support the statement that for the purposes of appeal the judgment is final under the express terms of the statute as soon as it is entered. When the defendant fails within sixty days after the entry of judgment either to appeal or to commence proceedings for a new trial, the judgment becomes final for all purposes at the expiration of the sixty-day period. The matters determined are res judicata under the rule of

United States v. Throckmorton, 98 U. S. 61, [25 L. Ed. 93, see also, Rose's U. S. Notes]. An appeal from such a judg ment is not within the provisions of the statute, and vests no jurisdiction in the appellate court.

The appeal is dismissed.

Langdon, P. J., and Haven, J., concurred.

A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on October 13, 1919. (See Pacific Light & Power Co. v. Kauffman 39 Cal. App. 499, [179 Pac. 452].)

All the Justices concurred.

[Civ. No. 2965. Second Appellate District, Division Two.-August 15, 1919.]

CARLETON F. BURKE, Appellant, v. I. H. NORTON et al., Respondents.

[1] LANDLORD AND TENANT-RETAKING OF PREMISES - -RELEASE OF LESSEE. The retaking of the premises by the lessor releases the lessees from subsequently accruing rents, unless the lease expressly provides otherwise.

[2] ID. RIGHT OF ENTRY RESERVED-OPTION TO TERMINATE LEASENOTICE TO PAY RENT OR SURRENDER POSSESSION-FORFEITURE OF LEASE. Where a lease provides that "if the said lessees' shall fail to pay the rental aforesaid when the same becomes due and payable, or if they fail to keep, observe, or perform any other covenant, condition or obligation of this lease on their part to be kept or performed, the lessor shall have the right to enter into possession of the demised premises and to remove all persons and property therefrom, and, at his option, to terminate this lease. It is further understood that each and all of the remedies given to the lessor hereunder are cumulative; and that the exercise of one right or remedy by the lessor shall not impair his right to any other remedy," in an action brought to recover delinquent rent, attorney's fees, damages, and restoration of the premises, following failure of the lessees to comply with a notice to pay said rent or surrender

1. Effect of re-entry clause in lease, notes, 127 Am. St. Rep. 85; 42 L. R. A. (N. S.) 1087.

42 Cal. App.-45

possession, the court errs in declaring a forfeiture of the lease, the plaintiff not having elected to declare a forfeiture.

[3] ID. DEPOSIT BY LESSEES AS SECURITY-ACTION BROUGHT PRIOR TO TERMINATION OF LEASE-APPLICATION OF DEPOSIT TO SATISFACTION OF JUDGMENT.-Where such lessees had paid to the lessor a given sum "as security for the faithful performance by said lessees of each and all of the terms and covenants and conditions" of the lease, and in the lease it was agreed "that in the event that said lessees shall fail to keep and perform each and all of the terms and covenants and conditions," said sum of money, "or such portion thereof as may be necessary, shall be retained by said lessor and applied by him on account of the damages sustained by reason of the failure of said lessees to faithfully perform any of the conditions herein contained on their part to be performed," the court, in such action brought prior to the termination of the lease, properly ordered the application of such sum to the settlement of the judgment.

[4] JUDGMENT

APPEAL-RIGHTS OF PARTIES ASCERTAINED MODIFICATION OF JUDGMENT.-Where, on appeal, it conclusively appears that the rights of the parties have been fully ascertained, and that the trial court simply erred by the entering of an erroneous judgment, it is the duty of the appellate court to modify the judgment so as to finally settle the controversy, and render another trial unnecessary.

APPEAL from a judgment of the Superior Court of Los Angeles County. H. D. Gregory, Judge. Modified and affirmed.

The facts are stated in the opinion of the court.

Newlin & Ashburn and Eugene D. Williams for Appellant.

Haas & Dunnigan for Respondents.

THOMAS, J.-This is an action brought to recover rent, attorney's fees, damages, and restoration of the premises held by the defendants, I. H. Norton, H. Joe Isaacs, and M. M. Norton, under a certain lease entered into by them with the plaintiff on July 12, 1912, for a period of seven years and

3. Deposit by tenant to secure performance of stipulations contained in lease as penalty or liquidated damages, note, 19 Ann. Cas. 215.

Landlord's right to retain advance payment of rent on re-entry for condition broken, note, Ann. Cas. 1915B, 613.