Price v. Slawter

• Decision Date: 09 April 1959
• Docket Number: No. 18657,18657
• Citation: Price v. Slawter, 169 Cal.App.2d 448, 337 P.2d 914 (Cal. App. 1959)
• Court: California Court of Appeals
• Parties: L. H. PRICE and E. W. Van Buskirk, Plaintiffs and Respondents, v. John D. SLAWTER, Jr., Defendant and Appellant, Frances R. Slawter, etc., Defendant.

Page 914

337 P.2d 914

169 Cal.App.2d 448

L. H. PRICE and E. W. Van Buskirk, Plaintiffs and Respondents, v.John D. SLAWTER, Jr., Defendant and AppellantFrances R. Slawter, etc., Defendant.

No. 18657.

District Court of Appeal, First District, Division 1, California.

April 9, 1959.

As Modified on Denial of Rehearing May 6, 1959.

Di Maria & Daschbach, Palo Alto, for appellants.

L. W. Wrixon, San Francisco, James W. Foley, San Jose, for respondents.

BRAY, Acting Presiding Justice.

Petition by appellantJohn D. Slawter, Jr., for writ of supersedeas and temporary stay.Motion by respondents to dismiss appeal.

Question Presented.

Is the 'Interlocutory Judgment' a final judgment and hence appealable?

Record.

In an action brought by respondents against defendants to terminate a joint venture of the plaintiffs, defendantsJohn D. Slawter, Jr., and Benjamin Lee Slawter(since deceased and here represented by Frances R. Slawter, administratrix), in the purchase of certain real property, its development as a motel and the sale thereof, the court made findings of fact and conclusions of law and then entered its 'Interlocutory Judgment,' wherein it found and adjudged that the joint venture should be dissolved and its affairs wound up; that its assets be sold by a commissioner appointed therefor, and the proceeds applied to discharge the liabilities of the venture.Pending the further order of the court the management and control of the joint venture business (the operation of a motel) was left in plaintiffs, subject to the authority of the commissioner to sell it.

The court found that the total value of the assets of the venture was $375,208.79 and its liabilities were $478,368.98, of which sum $186,237.09 was owed plaintiffs for advances.The court ordered that the net proceeds from the sale of the assets should be applied to liabilities (a) to those owing to creditors other than partners, (b) to those owing to joint venturers other than for capital profits, (c) to those owing to joint venturers in respect of capital (the court found that appellant had made no contribution to capital), and (d) to those owing to joint venturers in respect of profits.The judgment then provided that the excess, if any, 'shall be retained by the * * * Commissioner, subject to the further order of this Court and the rendition of a final judgment herein; * * * 9.That this Court hereby reserves jurisdiction over the dissolution and winding up of said joint venture and authority to make such further orders as may reasonably be required in order to consummate the dissolution and winding up of said joint venture and the rendition of a final Judgment; * * *.'

Pursuant to the interlocutory judgment the commissioner noticed for sale the real and personal property of the venture setting the sale for March 4, 1959.Thereupon petitioner applied to this court for a writ of supersedeas and temporary stay.We granted a stay to await the determination of the application for writ of supersedeas.Thereafter respondents moved to dismiss the appeal upon the ground that the interlocutory judgment is not a final one and therefore not appealable.

Is the 'Interlocutory Judgment' Appealable?

It is conceded that unless it is a final judgment under section 963, Code of Civil Procedure, it is not appealable.SeeBakewell v. Bakewell, 1942, 21 Cal.2d 224, 130 P.2d 975.If it is a final judgment, the appeal would operate as a supersedeas without the necessity of a bond.Code Civ.Proc. § 949;Zappettini v. Buckles, 167 Cal. 27, 138 P. 696.It has been held that whether a judgment is a final one does not depend upon what it is entitled but what it does.Brown v. Memorial Nat. Home Foundation, 1958, 158 Cal.App.2d 448, 453, 322 P.2d 600.

The judgment here is practically identical with the one in Zappettini v. Buckles, supra, 167 Cal. 27, 138 P. 696, which the court there held was appealable as a final judgment.There, as here, it was an action for dissolution of a partnership, an accounting and distribution of the assets after payment of debts.A receiver appointed by interim order took possession of all the assets.(Here the sale is to be made by a commissioner who has not taken possession of the assets, rather than a receiver, a distinction without a difference.)There judgment was entered determining (as here) the rights of the partners as between themselves, and as here, it ordered (a) dissolution of the partnership, (b) sale of its assets by the receiver, (c) payment of its debts, and distribution of any balance to the partners in the proportions determined by the judgment.The court stated (167 Cal. at page 32, 138 P. at page 698): '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.'See alsoBrown v. Memorial Nat. Home Foundation, supra, 158 Cal.App.2d 448, 322 P.2d 600;Taylor v. Taylor, 1957, 153 Cal.App.2d 144, 314 P.2d 60;Peterson v. Lightfoot, 47 Cal.App. 646, 191 P. 48;Sondergard v. Breaum, 83 Cal.App. 352, 256 P. 580.

In determining what matters were decided by the judgment the findings of fact and conclusions of law as well as the judgment itself must be considered.See2 Witkin, California Procedure, p. 1831, § 102.

Respondents point to the well-established rule that where anything in the nature of judicial action is necessary to a final determination of the rights of the parties a judgment is interlocutory and not final.SeeBakewell v. Bakewell, supra, 21 Cal.2d 224, 227, 130 P.2d 975;Taylor v. Taylor, supra, 153 Cal.App.2d 144, 314 P.2d 60.They then contend that there were four matters still awaiting judicial action.First they contend that the findings and judgment did not determine how the net assets, if any, should be divided among the joint venturers.While the findings and judgment could have been clearer written in this respect, nevertheless a study of them shows that the court did make this determination.This fact differentiates this case from Bakewell v. Bakewell, supra, 21 Cal.2d 224, 130 P.2d 975, where the court in its interlocutory decree did not determine the interests of the partners.

Paragraph 12 of the findings incorporates certain provisions of the joint venture agreement, among which is the following: '1.All profits, earnings, losses and liabilities arising from the purchase and development of said real property shall be shared among the parties hereto as follows:' one-quarter to each.While the paragraph in the findings containing this statement relates primarily to the liability of the partners to the repayment to plaintiffs of the amount which the court found was owing from the joint venture to the plaintiffs for money advanced, it is clear from the findings and judgment as a whole that the proportion in which the profits, if any, from the sale of the assets after making the payments specifically provided to be paid, were to...