Solorza v. Park Water Co.

VALLÉE, J.

Appeal by plaintiff from a judgment for defendants in a derivative suit on behalf of shareholders of a mtual water company to rescind a sale of all of its assets.

On October 18, 1946, an interlocutory decree was rendered in the action which adjudged:

“1. That the sale and transfer of the assets and property of Mutual Water Company of El Jardín Tracts to Park Water Company be rescinded upon condition that within sixty (60) days from date of entry of this interlocutory judgment the sum of $4,300.00 plus all moneys expended by said Park Water Company for improvements and additions to and upon said properties of said Mutual Water Company of El Jardín Tracts be paid to said Park Water Company.

“2. Upon such payment, said Park Water Company shall account to said Mutual Water Company of El Jardín Tracts

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for the profits, if any, made by said Park Water Company during the time said 'properties have been in its possession and under its operation.

“3. Plaintiff to recover $2,000.00, as and for attorney’s fees expended in the prosecution of this action. Said sum of $2,000.00 may be deducted from the amount required hereunder to be paid by said Mutual Water Company of El Jardín Tracts to said Park Water Company.

“4. Upon compliance with the conditions hereinabove set out, defendants Park Water Company and H. H. Wheeler shall restore to said Mutual Water Company of El Jardín Tracts all property and assets of said mutual water company coming into their, or either of their, possession, together with any additions and improvements thereto acquired or constructed during the time in which said properties were in their, or either of their, possession, control and operation.

“5. Upon compliance with the conditions hereinabove set out, final judgment of rescission shall be entered herein.”

Plaintiff moved for a new trial, which motion came on for hearing on November 27, 1946, at which time the court made an order, the pertinent parts of which were: “. . . said motion is by the Court submitted. Counsel for plaintiff is granted leave, pursuant to Section 662 C.C.P., to present proposed amendments to Findings of Facts and Interlocutory Judgment, and to reopen case for further testimony, and to submit authority in re attorney fee.”