Ouzoonian v. Vaughan

228 P. 8 | Cal. | 1924

This case comes before us upon a motion of the plaintiffs and respondents to dismiss three appeals on the part of the intervener and appellant. A somewhat extended statement of facts is necessary to an understanding of the questions raised thereby. In 1920 the plaintiffs, being the owners of a ranch property together with certain personal property located thereon and used in the operation thereof, entered into a contract for the sale of said real and personal property to the defendants Vaughan at a price payable in installments, under which contract the defendants entered into possession of said land and personal property. Thereafter, in June, 1921, defendants executed to the intervener a promissory note secured by a chattel mortgage upon the crops to be produced upon said property in the year 1922. In December, 1921, plaintiffs commenced an action against defendants, in which they pleaded the conventional allegations of a suit to quiet title to the premises described in the contract and in addition thereto they set out the contract in haec verba, alleged various defaults on the part of the defendants in the performance thereof, alleged the commission of waste upon said premises by the defendants in failing to properly farm and care for the same, averred that the appointment of a receiver was necessary to properly care for said premises and the vines growing thereon, and prayed for the appointment of such receiver, for a decree adjudging the contract forfeited, quieting the title of the plaintiffs and debarring the defendants and all persons claiming under them from asserting any claim whatsoever in and to the premises. In December, 1921, plaintiffs also filed an affidavit alleging that said premises were set to fruit trees and grape-vines, that the defendants had neglected and were then neglecting to properly care for the same, by reason of which the premises had depreciated several thousand dollars in value, and that unless a receiver should be appointed to properly care for said trees and vines the same would become an utter loss, alleging the insolvency of the defendants and praying for the appointment of a receiver "to farm said premises during the pendency of this action, to have all powers given a receiver by law." The defendants appeared and filed an answer and a cross-complaint, to which an answer was filed by the plaintiffs. Thereafter, in July, 1922, an order was made appointing a receiver to take possession of the property and to "care for said real property and the vineyards and orchards growing thereon and the crops to be produced on said premises; to sell the said crops at such times and upon such terms as he shall determine to be for the best interests of the parties interested therein . . . and in general to maintain said property in good condition and to hold all of said property and the net proceeds of the sale of any crops produced thereon until the further order of this court." The receiver took possession of the premises, harvested the crops and sold the same and collected the proceeds thereof. Thereafter, in November, 1922, the intervener, by permission of court, filed his complaint in intervention, setting up the execution of his note and chattel mortgage and praying for the foreclosure thereof and for the sale of the crops upon said premises. The complaint in intervention was unverified and, so far as appears from the transcript herein, no answer thereto was filed by either the plaintiffs or the defendants. Thereafter, on November 23, 1922, a trial wag had, at the conclusion of which the court filed written findings of fact and conclusions of law in which it found in favor of the plaintiffs upon all of the issues of fact as between the plaintiffs and defendants, and concluded that the defendants did not have, either at the time of the commencement of the action or at the time of the making of the findings, any estate, right, title, or interest in or to said real property or said personal property, and that the plaintiffs were entitled to judgment quieting their title against the defendants and each and every person claiming or to claim by, through or under said defendants, or either of them, and forever debarring and enjoining said defendants, and each of them, and each and every person claiming or to claim by, through or under them, or either of them, from setting up or asserting any right, title, interest, estate, claim, or equity in or to said property or any part or portion thereof. This was followed by the entry, December 1, 1922, of a judgment to like effect, which provided further that "the court reserves the right to make all necessary further orders, judgments and decrees relative to the appointment of the receiver in this action and the disposition of all properties which have heretofore or may hereafter come into his possession." The preamble to these findings of fact recites the appearance of counsel for the plaintiffs and defendants, respectively, but does not mention the intervener or his counsel. It is apparent from the record, however, that the intervener and his counsel did appear and participate in said trial. Thereafter the receiver filed his report and account and a hearing was had thereon January 19, 1923, upon notice to all parties, at which hearing the intervener appeared by his counsel in opposition to the confirmation of said report and account, and orally presented objections thereto, and the court made its order overruling said objections, settling the account of the receiver, fixing his compensation, and directing the payment by him of the balance remaining in his hands, amounting to about two thousand dollars, to the plaintiffs. This order was entered January 30, 1923.

Thereafter, on June 27, 1923, other findings of fact were filed, reciting that the cause came on for hearing on November 23, 1922, the parties appearing by their counsel, including the intervener and his counsel, finding the facts as to the execution of intervener's chattel mortgage, and "that plaintiffs are and at all times since the commencement of this action have been entitled to the possession of said real property and all crops produced thereon since the commencement of this action," and concluding that the intervener should take nothing by reason of his complaint in intervention. On June 28, 1923, the intervener filed a notice of appeal from the "judgment of the trial court given in favor of plaintiffs on the twenty-seventh day of June, 1923," and "from the order of the court made June 26, 1923, ordering and directing the property mentioned in intervener's complaint paid out to the plaintiffs by the receiver." These appeals were thereafter on motion dismissed upon the ground that the judgment having been entered December 1, 1922, and the order settling the accounts of the receiver and directing the payment of money by him to the plaintiffs January 30, 1923, the appeals therefrom were too late, and that an appeal would not lie from the findings dated June 27, 1923, for the reason that no judgment had been entered thereon. (Ouzoonian v. Vaughan, 64 Cal.App. 369 [221 P. 958].) Thereafter, on February 7, 1924, at the request of intervener, the trial court entered a judgment upon the findings of June 27, 1923, that the intervener take nothing by his said action. Thereupon and on the same day the intervener filed notice of appeal "from the judgment of the trial court given in favor of the plaintiffs and against the intervener on the seventh day of February, 1924, upon the findings of fact and conclusions of law filed June 27, 1923," and "from the order of the court on directing the property mentioned in intervener's complaint to be delivered to the plaintiff by the receiver" and "from the order appointing said receiver as a part of the appeal from the aforesaid judgment." These are the appeals at which the present motion to dismiss is directed.

Intervener now concedes that his appeal from the order appointing the receiver is ineffective because taken too late. He asserts, however, that his appeal from the judgment of February 7, 1924, is in time and that "the appeal from the order directing the property to be turned over to the plaintiffs or the respondents here comes up with the appeal from the judgment and as a, part thereof." [1] The order directing the property in the hands of the receiver to be turned over to the respondents was a special order made after final judgment in the action and was, therefore, an appealable order. The intervener has in fact already prosecuted one appeal therefrom and his appeal has been dismissed upon the ground that it was taken too late. (64 Cal.App. 369 [221 P. 958].) Intervener contends, however, that he is now entitled to a review of this order in connection with his appeal from the judgment of February 7, 1924. Respondents reply that the purported judgment of February 7, 1924, is a nullity, for the reason that all issues and controversies between the parties were determined and concluded by the judgment of December 1, 1922. Respondents assert that that judgment which debarred not only the defendants, but "each and all persons claiming or to claim by, through or under them or either of them . . . from making, setting up or asserting any right, title, interest, estate, claim or equity in or to said real property or said personal property or any part or portion thereof adverse to plaintiffs" was necessarily an adjudication and estoppel against the intervener as to all of his rights and claims herein. It may be inferred from the record that the trial judge was of the contrary opinion. [2] In our view it is unnecessary to determine this question for the reason that if it be assumed that the first judgment was not an adjudication of the claim of the intervener, it follows that the order which was made after the judgment and which directed the receiver to pay over to the plaintiffs the balance of funds remaining in his hands was such an adjudication. The intervener was an active party litigant at the hearing which resulted in that order. The only controverted question of importance then before the court for adjudication was whether the funds then remaining in the hands of the receiver should be paid to the plaintiffs or to the intervener. These funds consisted of the proceeds of the crops which had been harvested by the receiver upon the premises in controversy during the year 1922. The plaintiffs claimed to be entitled thereto by virtue of their ownership of the premises and their right to the possession thereof from and after the institution of the action, which was December, 1921. The intervener claimed to be entitled thereto by virtue of his chattel mortgage. The trial court decided this issue in favor of the plaintiffs and against the intervener and made its order directing the receiver to pay over said proceeds to the plaintiffs. This was an adjudication that the claims of the intervener were without right. Whether that adjudication was correct or incorrect it is now final and conclusive against the intervener because the time for appeal therefrom had long since elapsed when this appeal was taken. The only question presented by the present appeal which touches the merits of the case is the question of intervener's rights under his chattel mortgage. That question having been determined by an adjudication which has become final and conclusive upon the parties, it would be a vain and useless thing to retain the appeal in this court for further consideration of a question which is no longer open to reconsideration as between these parties, and the motion to dismiss should be granted.

[3] We arrive at this conclusion the more readily by reason of the fact that an examination of the record upon this appeal convinces us that aside from the matter of estoppel by the previous judgment, we should be compelled to affirm the judgment here appealed from in any event. The appeal is upon the judgment-roll alone, there being no bill of exceptions or reporter's transcript. The findings are not inconsistent with the judgment appealed from and we are required to assume that they are fully supported by the evidence. The facts found would not support a judgment in favor of the intervener, and we are required to assume, in the absence of a bill of exceptions or reporter's transcript of the testimony, that the omission of the trial court to find other facts favorable to intervener's contention was due to the fact that no evidence was produced which would justify such findings.

The appeals are dismissed.