#### Griswold, appellant, *v.*Ryan, respondent.

Peactice — *time for taking appeals aft&r judgment and rehearing.*G-. commenced an action against R. in a justice’s court, and an appeal was taken to the district court, where R. recovered judgment. G. made a motion for a rehearing, which was denied, and perfected this appeal within ninety days after the denial of the motion, hut more than ninety days after the rendition of the judgment. The three hundred’ and sixty-ninth section of the Civil Practice Act provides that “ an appeal may be taken * -:f from a j udgment rendered on an appeal from an inferior court, within ninety days after the'rendition of the judgment.” *Meld,*that the motion for a rehearing is not a matter of right, and does not affect the judgment, which is final until reversed. *Meld,*also, that this appeal must he dismissed, because the same was not perfected within ninety days after the rendition of the judgment.

*Appeal from First JDistrict, Jefferson County.*

This action was commenced in a justice’s court and thence appealed to the district court.

The respondent filed a motion to dismiss this appeal.

Chumaseeo & ChadwioK and G. G. Symes, for the motion.

This court has no jurisdiction of the case. The appeal was not taken or perfected within ninety days from the time the judgment *48appealed from was rendered. Civ. Pr. Act, § 369; *DooUng*v. Moore, 20 Cal. 141.

W. F. SANDERS and Shober & Lowry, contra.

Tbe action of tbe court below was not final until tbe motion for a rebearing bad been overruled. Tbis appeal was taken within ninety days from tbe time tbe motion was overruled. Judgment was not final while tbis motion was pending. Tbe supreme com-t of tbe United States has decided that tbe ten days, within which an appeal must be taken to operate as a supersedeas, begins to run from tbe time a motion for a rehearing is overruled, and not from tbe time when tbe same was put on record.

Wade, C. J.

Tbis is a motion to dismiss appeal. There was a judgment for respondent in tbe court below, a motion for rehearing and an appeal to tbis court. Tbe appeal was not perfected within ninety days after tbe rendition of tbe judgment, as required by tbe statute, but was so perfected within tbe required time, after tbe motion for a rehearing bad been denied. It is. claimed that, while tbis motion was pending, tbe judgment amounted simply to an order, and that no appeal could have been taken until the motion was disposed of.

Tbe judgment below was final, until reversed or set aside, and barely fifing a motion for tbis purpose does not change its character.

Motions for rehearing after judgment cannot be made as of course, or demanded as of right. Judgments arfe so far within tbe control of tbe court that rendered them, that, upon proper showing and for good cause, motions for rehearing will be granted. But motions of tbis character can have no force or effect whatever until such a case is made as will obtain leave of tbe court to file them. Leave should be first obtained upon proper case made, but such leave does not disturb tbe final character of tbe judgment . Tbe placing on file of a motion for a rehearing, without any action by tbe court in tbe premises, does not in any manner affect tbe judgment, and does not prolong tbe time in which an appeal can be taken. *Columbia M. Co.*v. Holter, 1 Mon. 429.

*The motion to dismiss the appeal is granted.*