Bessinger v. Grotz
126 P.2d 355
Cal. Ct. App.
1942
Check Treatment

FREDERIC H. BESSINGER, Respondent, v. MYRTLE A. GROTZ, Appellant.

Civ. No. 13282

Second Dist., Div. Three.

May 29, 1942

Petition for rehearing denied June 26, 1942

his duty to collect the assets (§ 1037, Ins. Code) and distribute them ratably among the creditors (§ 1025, Ins. Code), subject to certain priorities (§ 1033, Ins. Code) in which appellant is not included.

If appellant, an unsecured general creditor, were permitted to levy on and obtain the dividends held by the bank receiver, the other creditors would be deprived of any share in those dividends, and appellant would obtain a preference or a greater percentage than other creditors.

The trial court did have general jurisdiction of the subject matter and the parties, but in view of the fact that the liquidation proceedings were pending in another court, and in view of the provisions of the Insurance Code, particularly section 1020, it would have been an error in the exercise of judgment to authorize the issuance of the writ of execution.

The trial court did not abuse its discretion. Although the court stated it would have granted the motion if it had been a matter of discretion only, it did exercise discretion in its determination that the motion should be denied. The reason for the ruling is not material. If the decision is correct it must be sustained regardless of the considerations which may have moved the trial court to its conclusion. (.)

The order denying the motion is affirmed.

Shinn, Acting P. J., and Shaw, J. pro tem., concurred.

James R. Jaffray for Appellant.

Robert N. Baker and Gordon L. Howden for Respondent.

SHAW, J. pro tem.—Plaintiff is a judgment debtor whose real property was sold to defendant under a judgment foreclosing a mortgage. He brought this action under section 707 of the Code of Civil Procedure, as a preliminary step to a redemption, to compel an accounting and disclosure of rents and profits alleged to have been received by defendant. Judgment was given for plaintiff, from which defendant appeals.

The trial court made findings which state the facts upon which plaintiff‘s right to redeem depends, including plaintiff‘s demand on defendant for a statement of rents and profits and defendant‘s failure to furnish it, and also find that during the period for redemption defendant made a contract to sell the property to persons, some of whom were in possession as plaintiff‘s tenants at the time of sale, and received installment payments, the amounts of which are not set forth, under said contract, but do not state that any rents and profits were received by defendant. In its conclusions of law the court directed the appointment of a referee to take an accounting from defendant. The judgment appealed from is entitled “Interlocutory Judgment for Accounting,” decrees that plaintiff have leave to redeem, appoints a referee, directs him “to take from the defendant . . . an accounting of all sums received by her . . . from the use and occupation of the property,” and orders “that when such accounting is and has been rendered and received and settled that a final judgment be entered, fixing, in accordance with the findings and conclusions of law herein, the sum for which said property may be redeemed by plaintiff. . . .” It also decrees that all sums received by defendant under the contract above mentioned are for the use and occupation of the property.

We have come to the conclusion that this judgment is unquestionably what it purports to be, a mere interlocutory judgment, and is not appealable. In , where the question was whether a judgment was appealable, the court thus stated the rule: “The general rule is that where a decree is made fixing the liability and rights of the parties which refers the case to a master or subordinate tribunal for a judicial purpose, such, for instance, as the statement of an account, upon which a further decree is to be entered, the decree is not final [citing authorities].” This rule has been approved and followed in ; ; ; and many other cases.

In , the rule is again declared, in these words: “As a general test, which must be adapted to the particular circumstances of the individual case, it may be said that where no issue is left for future consideration except the fact of compliance or noncompliance with the terms of the first decree, that decree is final, but where anything further in the nature of judicial action on the part of the court is essential to a final determination of the rights of the parties, the decree is interlocutory.” Further judicial action is essential here to a final determination of the rights of the parties, and by either of these statements of the rule the judgment is interlocutory and not appealable. The appeal must therefore be dismissed.

This point has not been raised by the respondent, or discussed by the parties, but in case of an attempted appeal from a nonappealable order, it is the duty of this court on its own motion to dismiss the appeal. (; .)

The appeal is dismissed.

Schauer, P. J., and Wood (Parker), J., concurred.

A petition for a rehearing was denied June 26, 1942, and the following opinion was thereupon rendered:

THE COURT.—By petition for rehearing appellant points out that the findings state the exact price, the amounts and times of monthly payments and the rate of interest specified in the contract of sale made by defendant, and the judgment decrees that payments under that contract are for the use and occupation of the property in question, from which appellant seeks to draw the conclusion that no judicial action remains to be done by the referee or the court. But the findings do not state the amount of money received by the defendant under this contract, nor do they find that the defendant has received no other sums for use and occupation of the land. Hence there are matters yet to be determined by the referee, and since the judgment provides for a settlement of the accounting taken by the referee, it obviously contemplates further judicial action by the court in making such settlement.

The petition of appellant for rehearing is denied.

Schauer, P. J., Wood (Parker), J., and Shaw, J. pro tem., concurred.