Brown v. Memorial Nat. Home Foundation

• Decision Date: 17 March 1958
• Citation: 158 Cal.App.2d 448,322 P.2d 600
• Parties: , 72 A.L.R.2d 997 Edmund G. BROWN, Attorney General, Plaintiff and Respondent, v. MEMORIAL NATIONAL HOME FOUNDATION, etc., Defendant, Cross-Defendant and Appellant; American Gold Star Mothers, Inc., etc., Defendant, Cross-Defendant and Respondent; Eleanor D. Boyd, Cross-Defendant and Appellant; R. E. Allen and George D. Lyon, as Receivers, Respondents. Civ. 22766, 22871.
• Court: California Court of Appeals Court of Appeals

Page 600

322 P.2d 600

158 Cal.App.2d 448, 72 A.L.R.2d 997

Edmund G. BROWN, Attorney General, Plaintiff and Respondent, v. MEMORIAL NATIONAL HOME FOUNDATION, etc., Defendant, Cross-Defendant and Appellant American Gold Star Mothers, Inc., etc., Defendant, Cross-Defendant and Respondent Eleanor D. Boyd, Cross-Defendant and Appellant R. E. Allen and George D. Lyon, as Receivers, Respondents.

Civ. 22766, 22871.

District Court of Appeal, Second District, Division 2, California.

March 17, 1958.

Trent G. Anderson, Jr., Wright, Wright, Goldwater & Wright, Loyd Wright, Richard M. Goldwater, Dudley K. Wright, Edgar R. Carver, Jr., Los Angeles, for appellant Memorial Nat. Home Foundation.

George W. Trammell, Long Beach, for appellant Eleanor D. Boyd.

Loeb & Loeb, Herman F. Selvin, Los Angeles, for respondent receivers.

Edmund G. Brown, Atty. Gen., George M. Goffin, Deputy Atty. Gen., for respondent Edmund G. Brown.

Wise, Kilpatrick & Pulley, Long Beach, for respondent American Gold Star Mothers, Inc.

HERNDON, Justice.

There are pending before this court motions to dismiss two appeals which arise out of the same action: (1) An appeal taken by defendants Memorial National Home Foundation, hereinafter referred to as 'Memorial,' and Eleanor D. Boyd from a judgment entered on December 10, 1956, and denominated 'Interlocutory judgment' (No. 22766); and (2) an appeal taken by Memorial from certain orders, hereinafter more definitely identified, approving the first account current of the receivers (appointed by provisions of the above-mentioned judgment), fixing the compensation of the receivers and authorizing its payment out of the receivership estate. (No. 22871.)

Our treatment of these motions to dismiss will be made more easily understandable, we trust, by first presenting a very brief general description of the underlying controversy as set forth in appellants' opening brief, the only brief upon the merits thus far filed:

'this action was brought by the Attorney General of the State of California for the purpose of resolving a dispute between two private corporations, American Gold Star Mothers, Inc., and Memorial National Home Foundation, over the charitable trusts managed and controlled by Memorial National Home Foundation. The Attorney General of the State of California did not take sides in the dispute either by way of the pleadings or at the trial, but rather left it up to the court to determine the merits of the dispute between appellants and American Gold Star Mothers, Inc.

'The dispute between American Gold Star Mothers, Inc. and appellant was over two matters--the first being who was entitled to control Momorial National Home Foundation, and the second being who were the beneficiaries of Memorial National Home Foundation. American Gold Star Mothers, Inc., maintained that the funds and properties held by Memorial National Home Foundation were held for the benefit of its members. Memorial National Home Foundation and Eleanor D. Boyd, its President, maintained that all but a small percentage of the funds and properties under its control were held for the benefit of all Gold Star parents without regard to membership in any organization.'

It appears that these complicated matters involve trust assets valued at several millions of dollars and thousands of actual or potential beneficiaries of the charitable trusts. An examination of the record immediately suggests the desirability of accomplishing a final adjudication as promptly as orderly processes of law will permit.

The Appeal from the Judgment (No. 22766)

As above noted, the judgment appealed from was entered on December 10, 1956, and was denominated 'Interlocutory Judgment.' Contending that the judgment is interlocutory in fact as well as by denomination, respondents Attorney General and American Gold Star Mothers, Inc. move to dismiss.

This judgment, based upon detailed findings of fact and conclusions of law, was rendered after a lengthy nonjury trial. The substance of each major provision of the judgment is indicated by the following summary statement of its effect:

(1) Decrees that the Attorney General is a proper and necessary party to safeguard the public interest and to prevent the loss and misuse of the assets of a charitable and benevolent trust;

(2) Declares that Memorial is a non-profit corporation organized for charitable purposes and that the property in its possession is held in trust for the charitable uses and purposes set forth in its original articles of incorporation;

(3) Declares that all funds and properties held or owned by Memorial, other than a certain housing project, are held in trust for members of American Gold Star Mothers Inc., and that said housing project and its income are held in trust for members of American Gold Star Mothers, Inc., but limited to parents of World War II servicemen;

(4) Removes Memorial as trustee of all assets in its possession and under its control and declares that the court will appoint a successor trustee or trustees to carry out the purposes of the trust as decreed;

(5) Appoints Allen and Lyon as receivers to take possession of all the assets, books, records and papers of Memorial and directs Memorial, its officers, directors, etc., to deliver to said receivers all said assets, books, records and papers;

(6) Restrains Memorial and its officers and directors from using any of the assets except for limited and specified purposes;

(7) Requires Memorial to render an accounting of all assets in its possession or under its control and of all income, disbursements, etc.;

(8) Again decrees 'that this court appoint a new trustee, or trustees, to carry out the provisions of the trusts * * *'; (Note: the judgment does not presently appoint a new trustee, that action being left for a future contemplated order.)

(9) Decrees 'that this court from time to time make such other and further orders as are competent, lawful and proper, for a complete determination of this action.'

We have concluded that the provisions of the judgment as above summarized give it the character of a final judgment within the meaning of subsection 1 of section 963 of the Code of Civil Procedure and, additionally, that the provision of the judgment appointing a receiver is specifically appealable under subsection 2 of the same section.

It is well settled, of course, that the denomination of a judgment as 'interlocutory' is by no means determinative of its finality for purposes of appeal. It is the substance and effect of the judgment which determines its finality. Lyon v. Goss, 19 Cal.2d 659, 669-670, 123 P.2d 11; In re Los Angeles County Pioneer Society, 40 Cal.2d 852, 857-858, 257 P.2d 1.

As stated in Lyon v. Goss, supra, 19 Cal.2d at pages 669 and 670, 123 P.2d at page 17: 'A decree in equity which is denomintated 'interlocutory' and directs a further hearing for certain purposes, may make so complete and final an adjudication of all issues of fact and law as to constitute a 'final judgment' within the meaning of that term as used in the statutes concerning appeals. The problem of determining whether a particular decree is essentially interlocutory and nonappealable, or whether it is final and appealable is often a difficult one.'

Lyon v. Goss, supra, 19 Cal.2d at page 670, 123 P.2d at page 17, provides us with a general test as follows: 'As a general test, which must be adapted to the particular circumstances of the individual case, it may be said that where no issue is left for future consideration except the fact of compliance or noncompliance with the terms of the first decree, that decree is final, but where anything further in the nature of judicial action on the part of the court is essential to a final determination of the rights of the parties, the decree is interlocutory.'

In Zappettini v. Buckles, 167 Cal. 27, 138 P. 696, the Supreme Court was called upon to determine whether the judgment there involved was final and appealable or interlocutory and nonappealable. This decision is very helpful because in that case further judicial action remained to be taken (after entry of the judgment there appealed from) generally quite similar in character to the judicial action which remains to be taken in the instant case. In that case the action was brought by one partner against another for dissolution of the partnership, an accounting and distribution of the assets after payment of debts. A receiver appointed by interim order took possession of all the assets. Thereafter, judgment was entered determining the rights of the partners as between themselves and ordering: (a) dissolution of the partnership, (b) sale of its assets by the receiver, (c) payment of its debts, and (d) distribution of any balance to the partners in the proportions determined by the judgment. In holding that the judgment was final and appealable the Supreme Court commented (167 Cal. at page 32, 138 P. at page 698): 'There remains only the question whether the judgment appealed from is a 'final judgment,' within the meaning of those words in our statutes on appeal. Notwithstanding the deferring of the fixing of the compensation of the receiver and of the referee, and the reservation of the determination of the question of the debts of the firm to others, the judgment fully and finally determined all the rights of the parties as between themselves.'

And in 167 Cal. at page 33, 138 P. at page 699, the court, after enunciating the same general rule as that given in Lyon v. Goss, supra, stated the following guiding principles which we regard as being directly applicable to the instant case: 'Mr. Freeman in his work on Judgments says that, if after a decree has been entered, no further questions can come before the court except such as are necessary to be determined in carrying the decree into effect, the decree is final. Section 22. In section 24 he says that, although other proceedings before the master are necessary to carry the...