Hohn, Application of

CourtCalifornia Court of Appeals
Writing for the CourtASHBURN; HERNDON, Acting P. J., and ROTH
Citation229 Cal.App.2d 336,40 Cal.Rptr. 125
Decision Date21 August 1964
PartiesApplication of Jacqueline HOHN for an Order Directing Arbitration. Jacqueline HOHN, Plaintiff and Respondent, v. Andrew V. HOHN and Mary Grace Hohn, Defendants and Appellants. Civ. 27974.

Page 125

40 Cal.Rptr. 125
229 Cal.App.2d 336
Application of Jacqueline HOHN for an Order Directing Arbitration.
Jacqueline HOHN, Plaintiff and Respondent,
v.
Andrew V. HOHN and Mary Grace Hohn, Defendants and Appellants.
Civ. 27974.
District Court of Appeal, Second District, Division 2, California.
Aug. 21, 1964.

Page 126

[229 Cal.App.2d 337] Crispus A. Wright, Beverly Hills, for appellants.

Tredway & Brandmeyer, Harold T. Tredway, Downey, for respondent.

ASHBURN, Justice. *

This is an arbitration proceeding which was commenced on December 8, 1961. An award was made in favor of petitioner-respondent Jacqueline Hohn on April 29, 1963. Motion to confirm the award was granted on June 17, 1963. Judgment thereon was rendered on September 4, 1963. On August 15, 1963, several weeks before the judgment was filed, Andrew V. Hohn filed notice of appeal 'from that Order confirming award of Arbitrators.' No notice of appeal from the judgment eo nomine was ever filed and, the notice of August 15, 1963 having been filed before any judgment was rendered, it could not fairly be construed upon its face as a reference to anything other than the award. Indeed, appellants' opening brief says: 'It is from this Order Confirming[229 Cal.App.2d 338] Award of Arbitrators that appellant appeals in this matter.

This court said in Hyatt v. Eckel Valve Co., 169 Cal.App.2d 35, 39, 336 P.2d 551, 553, that 'if a judgment has been entered upon an order confirming the award, there is no appeal from the order but only from the judgment.' This decision was rendered in March, 1959. The Legislature made this

Page 127

rule clear in 1961 with respect to future proceedings.

Prior to enactment of a 1961 revision of the arbitration statute, section 1293, Code of Civil Procedure, had read:

' § 1293. An appeal may be taken from an order confirming, modifying, correcting or vacating an award, or from a judgment entered upon an award, as from an order or judgment in an action.'

Effective on September 15, 1961, Chapter 461, section 1, of the Statutes of 1961 (p. 1540) repealed Title 9 (commencing with section 1280) of Part 3 of the Code of Civil Procedure, the entire arbitration statute, and enacted a new Title 9 on the same subject. This resulted in the repeal of section 1293 above quoted, enactment of a new 1293 having nothing to do with appeals 1 and a new section 1294 defining appealable orders in arbitration as follows:

' § 1294. Appealable Orders. An aggrieved party may appeal from:

'(a) An order dismissing or denying a petition to compel arbitration.

'(b) An order dismissing a petition to confirm, correct or vacate an award.

'(c) An order vacating an award unless a rehearing in arbitration is ordered.

'(d) A judgment entered pursuant to this title.

'(e) A special order after final judgment.'

Under its terms an order confirming an award is not appealable, only the judgment thereon. If this is not an appeal from the judgment we have no jurisdiction to entertain it, though respondent has not raised the point. (Cole v. Rush, 40 Cal.2d 178, 252 P.2d 1; Estate of Brady, 32 Cal.2d 478, 479-480, 196 P.2d 881; Collins v. Corse, 8 Cal.2d 123, 124, 64 P.2d 137; 4 Cal.Jur.2d, § 498, p. 337.)

However, Rule 2(c) of California Rules on Appeal comes to appellants' rescue. The last sentence says 'A notice [229 Cal.App.2d 339] of appeal filed prior to rendition of the judgment, but after the judge has announced his intended ruling, may, in the discretion of the reviewing court for good cause, be treated as filed immediately after entry of the judgment.' When read in the light of pertinent decisions such as Luz v. Lopes, 55 Cal.2d 54, 10 Cal.Rptr. 161, 358 P.2d 289; Larrus v. First National Bank, 122 Cal.App.2d 884, 886, 266 P.2d 143; People v. McShane, 126 Cal.App. 2d Supp. 845, 846-847, 272 P.2d 571; Perry v. First Corporation, 167 Cal.App.2d 359, 368, 334 P.2d 299; Nelson v. Angel, 94 Cal.App.2d 136, 139, 210 P.2d 256, the notice of appeal--'from that Order confirming award of Arbitrators'--filed between the date of order confirming award and 'judgment confirming award' seems to have been intended to reach whatever was appealable; aside from confirmation through minute order or formal judgment there was nothing else for the losing party to complain of. In his Request for Clerk's Transcript filed in 1963, appellants' counsel called for both the order confirming the award and the judgment roll; the clerk has included both documents in his transcript.

The above cited authorities make it clear that using the word 'order' for 'judgment' or vice versa in the notice of appeal is not fatal if the intent of the dissatisfied party is indicated with reasonable clarity in the light of the surrounding circumstances.

Luz v. Lopes, supra, 55 Cal.2d 54, 59, 10 Cal.Rptr. 161, 358 P.2d 289, after quoting subdivision (a) of Rule 1 of the Rules on Appeal which concludes with the words 'A notice of appeal shall be liberally construed in favor of its sufficiency' says: (55 Cal.2d

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at p. 59-60, 10 Cal.Rptr. at p. 164-165, 358 P.2d at p. 292)

'Under this rule, and prior to its adoption, it is and has been the law of this state that notices of appeal are to be liberally construed so as to protect the right of appeal if it is reasonably clear what appellant was trying to appeal from, and where the respondent could not possibly have been misled or prejudiced. There are many cases in which, under this rule, the word 'judgment' has been interpreted to mean 'order,' and vice versa. Thus in Adams v. Talbott, 20 Cal.2d 415, 126 P.2d 347, 348, the notice of appeal stated that the appeal was taken 'from the judgment rendered in favor of the defendant.' This notice was filed after the expiration of the time for an...

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19 practice notes
  • Crowell v. Dchf, No. B148291.
    • United States
    • California Court of Appeals
    • January 28, 2002
    ...original italics omitted; see also Siegel v. Prudential Ins. Co. (1998) 67 Cal.App.4th 1270, 79 Cal.Rptr.2d 726; Hohn v. Hohn (1964) 229 Cal.App.2d 336, 343, 40 Cal.Rptr. 125.) Although no state court has decided the exact issue before us, several federal circuit courts of appeal, including......
  • Lesser Towers, Inc. v. Roscoe-Ajax Const. Co., ROSCOE-AJAX
    • United States
    • California Court of Appeals
    • April 11, 1969
    ...appeal from the order of November 15, 1966, is dismissed as an appeal from an order no longer directly appealable. (Hohn v. Hohn (1964) 229 Cal.App.2d 336, 338, 40 Cal.Rptr. 125.) The word 'order' an used in Colvig v. RKO General, Inc. (1965) 232 Cal.App.2d 56, 71, 42 Cal.Rptr. 473 and Thri......
  • Otay River Constructors v. San Diego, No. D049612.
    • United States
    • California Court of Appeals
    • January 7, 2008
    ...or from a judgment entered upon an award[.]" (Sjoberg v. Hastorf (1948) 33 Cal.2d 116, 117, 199 P.2d 668; Application of Hohn (1964) 229 Cal.App.2d 336, 338, 40 Cal.Rptr. 125.) At that time, when an action was brought on a contract and a defendant petitioned to compel arbitration, an order ......
  • Jones v. Kvistad
    • United States
    • California Court of Appeals
    • September 3, 1971
    ...260 P.2d [19 Cal.App.3d 841] 156; B.S.B Constr. Co. v. Rex Constr. Co., 200 Cal.App.2d 327, 334, 19 Cal.Rptr. 167; Hohn v. Hohn, supra, 229 Cal.App.2d 336, 343, 40 Cal.Rptr. In the present case Kvistad petitioned to confirm the award and Jones, by her response, pursuant to section 1285.2, s......
  • Request a trial to view additional results
19 cases
  • Crowell v. Dchf, No. B148291.
    • United States
    • California Court of Appeals
    • January 28, 2002
    ...original italics omitted; see also Siegel v. Prudential Ins. Co. (1998) 67 Cal.App.4th 1270, 79 Cal.Rptr.2d 726; Hohn v. Hohn (1964) 229 Cal.App.2d 336, 343, 40 Cal.Rptr. 125.) Although no state court has decided the exact issue before us, several federal circuit courts of appeal, including......
  • Lesser Towers, Inc. v. Roscoe-Ajax Const. Co., ROSCOE-AJAX
    • United States
    • California Court of Appeals
    • April 11, 1969
    ...appeal from the order of November 15, 1966, is dismissed as an appeal from an order no longer directly appealable. (Hohn v. Hohn (1964) 229 Cal.App.2d 336, 338, 40 Cal.Rptr. 125.) The word 'order' an used in Colvig v. RKO General, Inc. (1965) 232 Cal.App.2d 56, 71, 42 Cal.Rptr. 473 and Thri......
  • Otay River Constructors v. San Diego, No. D049612.
    • United States
    • California Court of Appeals
    • January 7, 2008
    ...or from a judgment entered upon an award[.]" (Sjoberg v. Hastorf (1948) 33 Cal.2d 116, 117, 199 P.2d 668; Application of Hohn (1964) 229 Cal.App.2d 336, 338, 40 Cal.Rptr. 125.) At that time, when an action was brought on a contract and a defendant petitioned to compel arbitration, an order ......
  • Jones v. Kvistad
    • United States
    • California Court of Appeals
    • September 3, 1971
    ...260 P.2d [19 Cal.App.3d 841] 156; B.S.B Constr. Co. v. Rex Constr. Co., 200 Cal.App.2d 327, 334, 19 Cal.Rptr. 167; Hohn v. Hohn, supra, 229 Cal.App.2d 336, 343, 40 Cal.Rptr. In the present case Kvistad petitioned to confirm the award and Jones, by her response, pursuant to section 1285.2, s......
  • Request a trial to view additional results

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