Adams v. Talbott

SHENK, J.

This is an appeal from an order granting defendant’s motion to strike plaintiff’s notice of appeal and to terminate proceedings on appeal.

The plaintiff commenced an action against the defendant on January 12, 1938, to quiet title to certain real property. The defendant filed an answer and a cross-complaint seeking a reconveyance of the property theretofore transferred to the plaintiff upon a trust agreement for his benefit, and alleging a breach of that agreement by the plaintiff.

Dungan, a creditor of the defendant, intervened to protect certain creditor’s rights in any property in which defendant might have an interest. The court found the facts and concluded that a trust in the property existed in favor of the defendant, and that the plaintiff should account as trustee thereof. Judgment thereon was entered on June 19, 1939. The judgment provided that the plaintiff hold the real property as trustee for the defendant and that she reconvey it to him upon the condition that the defendant pay to her the sum of $4,909.97, together with accruals to be determined by the court on the final account of the trustee. The judgment provided that in the event of failure to perform the condition within ninety days from the entry of judgment the plaintiff would be entitled to a decree quieting her title in the property. Notice of entry of judgment was served on the plaintiff on June 21, 1939. The plaintiff filed a “First and Final Account of Trustee and Application to Settle said Account and Dismiss Trustee,” on October 10, 1939. On October 16, 1939, the court entered its order that the trust estate was indebted to the plaintiff as trustee in the sum of $2,893.50, and settling and approving the trustee’s account. On October 17,1939, the plaintiff filed a notice of motion for a judgment quieting her title upon the ground that the defendant had not complied with the condition stated in the judgment. On October 23, 1939, the court entered an order denying the motion based upon a finding that the defendant had been ready, willing and able and had offered to comply with

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the condition within the ninety-day period, and that the plaintiff forthwith reconvey the property pursuant to the judgment of June 21, 1939.

On November 9, 1939, the plaintiff filed a notice of appeal “from the judgment rendered in favor of the defendant,” a request to prepare a transcript, and a notice of intention to deposit the deed with the county clerk pursuant to section 944 ¡of the Code of Civil Procedure. The defendant moved to strike from the records the notice of appeal, the request for a transcript, and the notice of intention to deposit the deed and for an order terminating the proceedings on appeal, on the ground that the time had expired within which the plaintiff could prosecute an appeal. On December 15, 1939, the trial court granted the motion and terminated the proceedings on the ground that the appeal was from the judgment of June 19, 1939, and that the time for appeal from that judgment had expired prior to the filing of the notice of appeal. The plaintiff’s motion to strike that order was denied. The plaintiff prosecutes the present appeal from the order of December 15, terminating the proceedings on her appeal from the judgment.