Solorza v. Park Water Co.
| Decision Date | 28 November 1949 |
| Citation | 211 P.2d 891,94 Cal.App.2d 818 |
| Parties | SOLORZA v. PARK WATER CO. et al. Civ. 16957. |
| Court | California Court of Appeals Court of Appeals |
Manuel Ruiz, Jr., Los Angeles, for appellant.
Park Water Company and H. H. Wheeler, Paul Overton, Los Angeles, for respondents.
Appeal by plaintiff from a judgment for defendants in a derivative suit on behalf of shareholders of a mutual water company to rescind a sale of all of its assets.
On October 18, 1946, an interlocutory decree was rendered in the action which adjudged:
'1. That the sale and transfer of the assets and property of Mutual Water Company of El Jardin Tracts to Park Water Company be rescinded upon condition that within sixty (60) days from date of entry of this interlocutory judgment the sum of $4,300.00 plus all moneys expended by said Park Water Company for improvements and additions to and upon said properties of said Mutual Water Company of El Jardin Tracts be paid to said Park Water Company.
'2. Upon such payment, said Park Water Company shall account to said Mutual Water Company of El Jardin Tracts for the profits, if any, made by said Park Water Company during the time said properties have been in its possession and under its operation.
'3. Plaintiff to recover $2,000.00, as and for attorney's fees expended in the prosecution of this action. Said sum of $2,000.00 may be deducted from the amount required hereunder to be paid by said Mutual Water Company of El Jardin Tracts to said Park Water Company.
'4. Upon compliance with the conditions hereinabove set out, defendants Park Water Company and H. H. Wheeler shall restore to said Mutual Water Company of El Jardin Tracts all property and assets of said mutual water company coming into their, or either of their, possession, together with any additions and improvements thereto acquired or constructed during the time in which said properties were in their, or either of their, possession, control and operation.
Plaintiff moved for a new trial, which motion came on for hearing on November 27, 1946, at which time the court made an order, the partinent parts of which were:
On March 17, 1947, notwithstanding the order of November 27, 1946, a final judgment was rendered, in which reference was made to the provision in the interlocutory decree providing that plaintiff was entitled to a judgment rescinding the sale upon the conditions there stated and which adjudged that plaintiff take nothing, that the dissolution of Mutual Water Company of El Jardin Tracts was null and void, and 'That plaintiff have and recover out of any fund in the hands of said mutual Water Company of El Jardin Tracts arising or resulting from this action, the sum of $2,000.00 together with his costs herein, in the sum of $286.90.'
On appeal by the plaintiff the final judgment was reversed and the cause remanded 'with directions to the court below to afford appellants sixty days from and after the remittitur is lodged therein, within which to comply with the terms of the interlocutory judgment entered herein, and thereafter to enter an appropriate final judgment, based upon appellants making or refusal to make restoration in compliance with the interlocutory judgment.' Solorza v. Park Water Co., 86 Cal.App.2d 653, 664, 195 P.2d 523, 530.
On November 18, 1948, the plaintiff not having made restoration in compliance with the interlocutory decree, a new judgment was rendered that plaintiff take nothing and that the dissolution was null and void. This final judgment did not include the provision in the interlocutory decree that plaintiff recover $2,000 for attorney's fees expended in the prosecution of the action. The plaintiff appeals from the latter judgment.
Appellant claims that the court erred in omitting to incorporate the award of attorney's fees in the final judgment of November 18, 1948. An interlocutory decree is distinguished from a final decree in that it is not a final and conclusive determination of the rights of the parties, but may be changed or modified as the law and evidence require except in partition and divorce cases. Thompson v. White, 76 Cal. 381,...
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