Rossi v. Caire

209 P. 374 | Cal. | 1922

Motion to dismiss appeal from the interlocutory judgment herein.

The facts of this case are sufficiently set forth in our former decisions in the cases of Rossi v. Caire, 174 Cal. 74 [161 P. 1161], and Rossi v. Caire, 186 Cal. 544 [199 P. 1042]. In the latter of these cases the judgment in the defendants' favor was reversed and the cause remanded for further proceedings consistent with the views expressed in that decision. Thereafter the trial court made and entered its interlocutory judgment in the plaintiff's favor, declaring the status of the plaintiff as a stockholder of the Santa Cruz Island Company, a defunct corporation, and directing the defendants as trustees thereof to render and file a full inventory and accounting of the properties of said corporation in their hands as the trustees thereof, and take all necessary and proper steps to obtain possession of all of such properties. The decree further orders "that all further proceedings in the matter of the accounting and settlement of the affairs of the Santa Cruz Island Company are reserved for disposition as may be hereafter determined and adjudged therein." It is from this decree that the present appeal has been taken and the ground of the respondent's motion to dismiss said appeal is "that the said interlocutory decree appealed from is a nonappealable order."

[1] We think the motion must be granted. In the first case ofRossi v. Caire, 174 Cal. 74 [161 P. 1161], this court, in discussing a similar decree in a previous action between the same parties, for substantially the same relief, held that the judgment in that action "merely declared the status of the plaintiff as a stockholder, the number of his shares, his right to distribution and directed the trustees to give notice to creditors and file an inventory of the assets of the corporation. In its nature and effect it was preliminary and interlocutory and not final." The appeal in that case was from certain subsequent orders made upon the filing of such inventory and which directed the sale of the properties and distribution of the funds of the corporation as reported therein. This court held that these orders were appealable as final judgments and that upon such appeal "there may be a review of the previous proceedings, including the sufficiency of the findings to support the interlocutory judgment. These rulings cover the precise situation as presented upon the appeal except that the appeal in this case is from the interlocutory judgment itself. Said interlocutory judgment is not one of the interlocutory judgments, orders or decrees specified in section 963 of the Code of Civil Procedure from which appeals are permitted to be taken, and the court is therefore without jurisdiction of the attempted appeal. (Krotzer v. Clark, 178 Cal. 736 [174 P. 657].) It follows that this appeal must be dismissed and it is so ordered.

Richards, J., pro tem., Shaw, C. J., Lennon, J., Lawlor, J., Wilbur, J., and Waste, J., concurred.