Adams v. Woods

21 Cal. 165 | Cal. | 1862

Norton, J. delivered the opinion of the Court

Cope, J. concurring.

This is an appeal from an order directing the receiver to “ distribute of the funds in Ms hands, under and in the order mentioned in the decree heretofore made in this cause, the sum of $5,000 to the parties entitled to the same.” This order is not a special proceeding within the purview of the first subdivision of section three hundred and tMrty-six of the Practice Act. It does not resemble the order made m this case reported M 18 Cal. 30, which was held to be a special proceeding, and not appurtenant to the mam litigation, but appears to be oMy an interlocutory order m the progress of the action.

The document filed as the record on tMs appeal consists simply of an order, entitled in this action, upon the receiver to file Ms “ final account,” then a brief account, filed by the receiver, called a “ supplemental account,” and which consists only of a recital of what a referee had reported as to the receiver’s accounts, and a statement of eertarn offsets w'hich the receiver says the referee disallowed, but which he claims, and then this order, from which the appeal is taken. We cannot see that these papers have any special connection, or that they constitute a record of any proceeding. A mere order like this, detached from the proceedings in an action, cannot be treated as a final judgment from which an appeal may be taken. If an order for the distribution of a sum of money by a receiver may in some cases be a final judgment, an appeal from it must present it as the final result of some proceeding, and the record must show what the proceeding is. In this case the order is presented simply as an interlocutory order in another proceeding or action, and without any other portion of that proceeding or action. There is nothing in the papers before us by which it can appear whether the order is correct or erroneous. Presented in this form it is not an appealable order or judgment.

The order, therefore, not being one for which a separate appeal is provided, the appeal must be dismissed.