27 P.2d 897 | Cal. | 1933
Motion to dismiss appeal from certain orders and judgments.
This is an action for an accounting. The defendants Swanson and Verdugo Lumber Company answered and cross-complained. A money judgment was entered in their favor. Upon appeal therefrom the plaintiffs Hood filed a stay bond by the terms of which the Aetna Casualty Surety Company undertook to pay the judgment or any part thereof in the event of an affirmance or a dismissal of the appeal. The District Court of Appeal, Fourth Appellate District, concluded that the trial court had improperly allowed interest prior to judgment. (
[2] The attempted appeal from the order granting the motion for the entry of a corrected judgment must also be dismissed. Such an order is nonappealable, the same being reviewable on appeal from the judgment.
[3] Subsequent to the entry of the corrected judgment and after an execution thereon had been returned unsatisfied, the cross-complainants filed an affidavit looking to an examination of the judgment debtors (the plaintiffs Hood) and the surety on the prior appeal bond (the Aetna Casualty Surety Company) with a view to ascertaining the nature and extent of the property deposited by said debtors with the surety as security for the bond furnished by the latter. The trial court on May 18, 1933, made and filed an order for *560
examination as prayed. On the following day an unsuccessful attempt was made to have the order for examination of debtors vacated and set aside. Hearing was had on the order for examination on May 24, 1933, at which time the parties appeared, were examined and discharged, no order apparently being made relative to the application of any money or property in discharge of the judgment. Inasmuch as the examination has been had and the matter is now moot, the appeal from the order refusing to vacate the order for examination of debtors must be dismissed. (In reBlythe,
[4] We are next confronted with the appeal of the surety company from a judgment entered against it on the bond theretofore filed by it to stay the original judgment pending the appeal therefrom. In response to the contention that the judgment against the surety was entered pursuant to the terms of the stay bond and was therefore a consent judgment and nonappealable, the appellants contend that the original judgment was not "affirmed" in whole or in part as required by the bond, but was "reversed" with directions to the trial court to enter a proper judgment omitting therefrom all reference to and allowance of interest prior to judgment. The point is without merit. As indicated above, the District Court of Appeal approved and for present purposes must be held to have affirmed the judgment for principal entered in favor of the cross-complainants and respondents and merely rejected that portion of the judgment awarding interest prior to judgment. Under the directions of the appellate court there was no necessity for a retrial of any of the issues. The judgment as originally entered was, in the main, approved. The second judgment complied in all material respects with the directions of the appellate tribunal and, so far as material here, was identical with the original judgment except for the interest item, which, pursuant to directions, was deleted. In view of this, we are satisfied that the judgment was affirmed "in part" within the meaning of the stay bond. The judgment against the surety must therefore be held to be a consent judgment and nonappealable.
In the main, the authorities cited by the appellants on this point are distinguishable and contain nothing in conflict *561
with our holding herein. There is, however, language in Chase
v. Ries,
In the absence of the facts, the italicized portion of the quotation might reasonably be interpreted to mean that the judgment directed to be entered varied from and was "different" in material and substantial respects from the judgment originally entered in the trial court. Such is not the situation here confronting us. As pointed out above, the judgment entered in the present case pursuant to the direction of the appellate court was on the merits of the case the same judgment as had been originally entered with the omission of interest prior to judgment. This being so, it must be held that the judgment thereafter entered against the surety on the appeal bond was a consent judgment and nonappealable.
It is also significant to note, and the point is stressed inHeinlen v. Beans,
What has been said necessarily disposes of the purported appeal from the order granting respondents' motion for the entry of judgment against such surety. That order is likewise nonappealable. *562
The appeals from the several judgments and orders are, and each is, hereby dismissed.
Preston, J., Curtis, J., Langdon, J., and Seawell, J., concurred.