Keyes v. Hurlbert

California Court of Appeal Jan 22, 1941 No. Civ. 2602Published

Before: Griffin

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Holding. The court declined to rule on the motion to dismiss the appeal, determining that the issues raised regarding estoppel and the merits of the judgment required a full examination of the record on appeal.

Issues

Whether the appellants are estopped from appealing the judgment due to their acceptance of partial distribution funds.
Whether the appeal should be dismissed as moot because the executor complied with the judgment.
Whether the failure of the judgment to address partnership profits precludes dismissal of the appeal.

Disposition. Motion to dismiss continued to be heard with the merits of the appeal.

Quotations verified verbatim against the opinion

“It has been clearly established in this state that where there is left any material or vital question for determination the court should not dismiss the appeal but should permit it to be heard on the merits.”

“In view of the issue presented on the motion we are convinced that these questions should be considered together with the questions raised on appeal from the judgment.”

GRIFFIN, J.

The appeal in the above entitled action was from a decree ordering specific performance by the executor, Elmer 0. Hurlbert, of a contract entered into between decedent, Andrus Hurlbert, and his two partners, Vincent G. Keyes, the plaintiff and respondent, and Elmer 0. Hurlbert, the defendant and respondent. By that judgment it was ordered that the defendant executor make, execute and deliver to the plaintiff a bill of sale covering the interest of the de

[533]

ceased Andrus Hurlbert, in and to a partnership known as “General Transfer Company”, and also a deed to certain real property. It is now claimed on this motion to dismiss the appeal that the defendant Elmer 0. Hurlbert, as executor of the will and estate of Andrus Hurlbert, deceased, since perfecting this appeal, complied with the terms of said judgment by executing the bill of sale and deed; that he did not appeal from the judgment; that appellants, the interveners, appealed from the decree; that the defendant Hurlbert, as executor, should have received more than $30,828.94, for the share of decedent (Andrus Hurlbert) in the partnership; that after appellants’ appeal from .the decree the defendant Elmer 0. Hurlbert, as executor, filed his first account and report and that therein he reported to the superior court the receipt of the said sum above mentioned and the making of a bill of sale and deed to Vincent G. Keyes, as described in the judgment; that an order was made allowing and approving the amount and confirming and approving all of the acts of the executors; that the interveners had participated in the partial distribution that was made out of the funds of the estate, which funds included the sum of $30,828.94. It is therefore argued that appellants cannot accept the fruits of an indivisible judgment or decree and at the same time appeal from the decree, citing

Turner

Markham,

152 Cal. 246 [92 Pac. 485] ,

In re Baby,

87 Cal. 200 [25 Pac. 405, 22 Am. St. Rep. 239] ,

Estate of Shaver,

131 Cal. 219 [63 Pac. 340] , and

Keyes v. Hurlbert

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GRIFFIN, J.

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