218 P. 439 | Cal. Ct. App. | 1923
Lead Opinion
The action from which this appeal arises was filed on the sixth day of June, 1921, the complaint alleging that on June 1, 1920, the parties entered into an oral agreement of copartnership in a business known as "Menotti's *50 Buffet," in the city of Venice; that the defendant agreed to and did act as manager of the business, for which he was to receive $125 per month; that the plaintiff was the owner of the premises upon which the enterprise was situated, which she leased to the copartnership at rentals varying from $150 to $350 per month, in the winter and summer seasons, respectively, and that each should share equally in the profits. It is further alleged that there was no agreement as to the duration of such partnership, but that on March 29, 1921, plaintiff formally notified defendant of its termination, and offered to purchase his share at cost, and to assume the rent for the month of April; and that again on June 1, 1921, the plaintiff notified defendant that the latter having claimed that the partnership had been created for a period of one year, said partnership had terminated on March 29th, or was terminated on June 1, 1921, and, in either case, demanding its termination, and offering to purchase defendant's share at cost. The reasons for such notice were alleged to have been the assumption by defendant of control of the business and the assets and books thereof, to the exclusion of the plaintiff, and mismanagement, and refusal to account. The plaintiff prayed for the appointment of a receiver, dissolution of the partnership from the sixth day of June, 1921, sale of the assets, payment of the obligations, and distribution of remaining assets.
The defendant answered, admitting the material facts as to the partnership agreement, but denying the existence of any stipulated date for its termination, and denying the alleged derelictions on his part. He also denied all of the asserted grounds for appointment of a receiver, and averred that such action would endanger the property and goodwill of the business and entail financial loss to the parties.
Issues having been joined, further minutia of which it is unnecessary here to detail, a trial was had before the court, without a jury, and evidence was introduced on July 18, 19, and 22, 1921, but no judgment was rendered. As a result of the hearing an accountant was employed, who rendered his report on August 2, 1921. On the following day the plaintiff filed an order for the dismissal of the action, and on October 4th she filed another such order, neither of which was signed by the court or acted upon further. *51
On the last-mentioned date the defendant filed affidavits wherein he claimed that the total merchandise of the copartnership, as shown by the auditor's report, appeared to be of the value of $1,534.47, and the cash on hand $1,707.76; but that he had discovered an apparent transfer of $2,010.83 from the partnership bank account to plaintiff's private account, without agreement, which had not been included in the auditor's report, and which remained unsettled in the final adjustment based thereon. Fraud was not alleged in this connection. He asked for further hearing, adjustment as to this additional amount, and judgment. On November 10, 1921, the court, over plaintiff's objections, heard the evidence of defendant, upon the conclusion of which his motion was denied upon the ground that his evidence was insufficient to "upset the settlement" theretofore agreed upon. Plaintiff thereupon, in obedience to a direction from the court, executed and prepared a third order for dismissal of the action, which was then signed by the judge and filed.
Appellant maintains that this is not an appeal from the order decreeing a dissolution of the partnership as of August 1, 1921, but from the order of dismissal of the action following appellant's evidence in respect to a certain item. This the respondent controverts, and contends further that appellant had no right to present his motion of November 10th, because (1) the action had been tried, and (2) that the parties had stipulated as to their rights and interests, and that the court was required to enter a decree in strict conformity therewith; that if a stipulation presented to the court did not fully express the intention of the parties, it was a matter for correction by appropriate action, but that the court was without authority to "open up the case."
Appellant, in turn, maintains that he established the disputed item prima facie to be money belonging to the partnership, "without dispute," and assumes that it was the duty of the court to require plaintiff, if possible, to produce evidence tending to show that it was not a partnership item, but grew out of some transaction between the parties wholly foreign to their partnership relations.
Referring to the evidence received upon November 10, 1921, the court, when ordering the dismissal, said: "It is insufficient to keep the court from consenting to his dismissal. I have allowed it to come in over his objection because *52 I thought you might prove enough to justify the court in not joining in, as the court would have to do, in his dismissal. He attempted to dismiss it twice. Neither time did he come to the court and get the necessary consent, so it was not actually dismissed. . . . My ruling is merely for granting a dismissal on the ground of insufficient showing."
The defendant appealed, as appears from his notice, "from the order or judgment made and entered by said superior court in the above-entitled action on November 10, 1921, by which order or judgment said court granted the motion of the plaintiff to dismiss the above-entitled action, and did pursuant thereto make and enter an order or judgment of dismissal in said cause."
From the foregoing it is difficult to perceive how any doubt can exist as to this appeal being one from the order dismissing the action.
[1] No judgment or dismissal having theretofore intervened, the court had power to control its own proceedings and to permit either party to introduce further evidence in anticipation of a judgment to be based upon facts which the parties between hearings had sought to obtain and agree upon.
[2] Under section
The court having in its rightful discretion received evidence upon the issues presented, questions of fact arose for its determination which this court will not review where, as here, there is evidence to support the conclusion reached.
Although, as appellant contends, it is within the power of the court to relieve from dismissal, yet it cannot be held to be a duty. Appellant relies upon Truett v. Onderdonk,
The order dismissing the action is affirmed.
Finlayson, P. J., and Works, J., concurred.
A petition by appellant to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on September 13, 1923, and the following opinion then rendered thereon:
Addendum
[3] In denying the petition for a transfer to this court we desire to say that the dismissal of the action was justified under section
The petition for a hearing is denied. *54
