Maxwell v. Superior Court

California Supreme Court Jul 17, 1934 No. S. F. 15106Published

Before: Shenk

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Holding. The court held that an interlocutory order determining the sufficiency of a property title is non-appealable, meaning an attempted appeal from such an order does not divest the trial court of jurisdiction to proceed with the case.

Issues

Whether the trial court retained jurisdiction to enter an order regarding title merchantability while an appeal from a prior interlocutory order was pending.
Whether an order determining the sufficiency of a title in a specific performance action is an appealable final judgment or special order after final judgment.

Disposition. Peremptory writ issued.

Quotations verified verbatim against the opinion

“The order of October 3, 1933, therefore, was not a special order made after final judgment. Nor was it the final judgment contemplated by the interlocutory decree.”

“The purported appeal therefrom was ineffectual and did not divest the respondent court of jurisdiction to make the order of December 4, 1933, or to proceed to final judgment in the action pending before it.”

[295]

SHENK, J.

Petition for writ of mandate. The matter is presented on the petition, the answer thereto and a demurrer to the answer.

Charle Hammer and Frida Hammer, his wife, brought an action in the respondent superior court against the petitioners herein to rescind certain agreements for the sale of real property. The plaintiffs in the action were the purchasers under said agreements and the petitioners herein were the defendant sellers. The defendants in the action filed a cross-complaint seeking reformation and specific performance of the agreements.

On July 14, 1933, the respondent court made and entered its order termed an interlocutory decree, wherein it adjudged the defendants entitled to reformation and specific performance of the agreements. The order directed that within ten days after service of notice of entry of the interlocutory decree, the defendants deposit with the clerk of the court a grant deed to the property involved conveying to the plaintiffs a merchantable title; that the plaintiffs should have ten days after service of notice of deposit of the deed to deposit the amount of the purchase price or to file and serve a written notice of their objections to the title. The interlocutory decree provided that the court should pass upon the objections and if it should determine that the plaintiffs would receive a merchantable title they should have ten days within which to deposit the purchase money with the clerk. If it should be determined that the title was defective, the defendants were to have 120 days within which to obtain a court decision that the title was clear and merchantable, the plaintiffs thereupon to have ten days within which to deposit the purchase price. It was provided further that upon the deposit of the purchase money a final judgment of specific performance should be entered declaring that the property had been conveyed and the purchase money paid; but that upon failure to deposit the purchase money the defendants should have judgment against the plaintiffs for the amount thereof, $6,500, with interest from January 15, 1932.

Within due time the defendants in said action, the petitioners herein," deposited with the clerk of the court their grant deed. The plaintiffs filed and served their objections to the title. A hearing on said objections was had and on

Maxwell v. Superior Court

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SHENK, J.

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