Hohn, Application of
Decision Date | 21 August 1964 |
Citation | 229 Cal.App.2d 336,40 Cal.Rptr. 125 |
Parties | 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. |
Court | California Court of Appeals Court of Appeals |
Crispus A. Wright, Beverly Hills, for appellants.
Tredway & Brandmeyer, Harold T. Tredway, Downey, for respondent.
*
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 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 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:
Effective on September 15, 1961, Chapter 461, section 1, of the Statutes of 1961 (p. 1540) repealed Title 9 (commencing with section 1280) of Part 3 of the Code of Civil Procedure, the entire arbitration statute, and enacted a new Title 9 on the same subject.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 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 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 appeal from the judgment. It was held that since it was apparent what appellant was seeking to have reviewed, the notice even though it read 'judgment' should be interpreted to mean that it referred to a subsequent appealable order. In the same way, and for the same reasons, in Perry v. First Corporation, 167 Cal.App.2d 359, 334 P.2d 299, where the notice of appeal described the 'judgment' the court construed it as an appeal from a minute order. See also Holden v. California Employment Stabilization Comm., 101 Cal.App.2d 427, 225 P.2d 634. The converse is also true. Notices of appeal describing an 'order' have been construed to mean 'judgment.' Thus in Collins v. City and County of San Francisco, 112 Cal.App.2d 719, 247 P.2d 362, the notice of appeal described a minute order of a given date. It was construed as an appeal from a 'judgment' of a different date. In Evola v. Wendt Construction Co., 158 Cal.App.2d 658, 323 P.2d 158, the notice of appeal described the appeal as being taken from the order sustaining the demurrer without leave to amend. It was construed as an appeal from the judgment subsequently entered. See also Girard v. Monrovia City School District, 121 Cal.App.2d 737, 264 P.2d 115; Karrell v. Watson, 116 Cal.App.2d 769, 254 P.2d 651, 255 P.2d 464.
It seems apparent that respondent could not have been misled at bar.
We therefore feel constrained to treat the record as showing 'good cause' within Rule 2(c), as was done in Larrus v. First National Bank, supra, 122 Cal.App.2d 884, 886, 266 P.2d 143, though no good cause was actually shown by or on behalf of appellants.
We proceed to a consideration of the merits, but appellants' position is not improved thereby.
We do not have before us the complaint in the action, but the Amended Petition for Order for Arbitration to Proceed, filed by Jacqueline Hohn, alleges the making of a lease from her as landlord to Andrew V. Hohn and Mary Grace Hohn as lessees, for a period of 15 years, covering property in Los Angeles County known as the Plum Canyon Hog Ranch and providing that the premises should be used for the sole purpose of conducting thereon a general hog raising business. Also that:
'A controversy has arisen out of said contract and now exists and is as follows: Lessees claim that said lessees are prohibited by legal authority from maintaining a hog ranch on the demised premises and thereby and by virtue of the provisions of said lease, said lease is terminated' and:
'Said written contract contains a provision to settle by arbitration any controversy arising out of the contract or the refusal to perform the whole or any part thereof.'
It further alleges that although petitioner and lessees respectively had appointed an arbitrator, those two appointees were unable to agree upon an independent third arbitrator as provided by the terms of the lease. The prayer was for appointment of such third arbitrator by the court and for other appropriate relief. The board was thus completed, hearings were held by the arbitrators, who made their award containing these findings:
'The lease duly and legally entered into on May 18, 1954 by and between PETITIONER, JACQUELINE E. HOHN as 'Landlord' and RESPONDENTS, ANDREW V. HOHN and MARY GRACE HOHN as 'Tenants' is a valid, binding lease on the parties; RESPONDENTS as lessee have not been prevented by legal authority from operating a hog ranch on the demised premises, nor has there been a frustration of the purpose of the lease, and therefore, the purported abandonment of...
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