¶1I dissent.
¶2The 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.
¶3The 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.
¶4That 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 interpretation having that result. The injustice which may result from such an interpretation is further emphasized when we realize that it means that if the court has not ruled on the 120th day, the notice of appeal must be filed on the same day or the right to appeal is lost. But it would not be possible to file a notice of appeal on that day inasmuch as the day would have to end before it was known whether a ruling would be made, and then it would be too late to appeal. Suppose counsel does not have his office in the county seat. It may well be physically impossible for him to get his notice of appeal filed in time, even if he was notified during the 120th day that his motion to vacate had been denied.
¶5*299The majority argue that since the rule as to extension of time by new trial proceedings by “express terms” provides for a maximum of 150 days within which an appeal may be taken, and the rule on vacation of judgment proceedings contains no such express provision, it cannot be so construed. This argument is squarely refuted by the following comments of one of the draftsmen of the rules: “Under our former statute, only new trial proceedings served to extend time to appeal. In view of the general policy favoring applications for relief in the trial court, the draftsman suggested that motions made under Section 663 of the Code of Civil Procedure, which are analogous and complementary to new trial motions, should likewise receive the benefits of the extension provision. One objection, of course, was that the statute fixes a time limit for deciding motions for new trial, but no such limit is placed upon the other type of motion. Accordingly the rule, as drafted, specifies a maximum period of 120 days after entry of the judgment, in which the motion to vacate must be made and decided, if the proceeding is to operate as an extension of time to appeal. This period corresponds to the maximum possible under the new trial statute.” (17 So.Cal.L.Rev. 96.) The maximum time for appealing where there are new trial proceedings is 150 days. (Mellin v. Trousdell, 33 Cal.2d 858 [205 P.2d 1036].) To carry out the purpose, that is, to give the same extension where there is a motion to vacate a judgment, compels the conclusion that the maximum should be 150 days. Correctly construed, therefore, the rule provides for a period of 30 days after the 120 days which would make a total of 150 days within which an appeal may be taken after the entry of judgment where a motion is made pursuant to the provisions of section 663 and denied on or after the 120th day.
¶6The interpretation placed by the majority upon rule 3(b) postulates an unjust reflection upon the able and eminent jurists who constitute the Judicial Council of California and the learned and able draftsman of said rule.
¶7I would deny the motion to dismiss the appeal from the judgment.
¶8Schauer, J., concurred.
¶9Respondent’s petition for a rehearing was denied October 13,1949.