Mendelsohn v. Miller

ASHBURN, J.

Motion to dismiss appeal from an order which appellant claims to be a special order made after final judgment and hence appealable under section 963, Code of Civil Procedure.

The judgment herein declares the dissolution of a partnership between plaintiff Leonard T. Mendelsohn and defendant Benjamin N. Miller, and directs the receiver previously appointed to continue to act, to sell certain real property belonging to the partnership, and to distribute the net proceeds

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equally between the said parties, Mendelsohn and Miller; it also provides that the “purchaser shall be entitled to and shall have credit against the purchase price of said real property for any rentals pre-paid and un-earned, (including any lease deposits), at the close of the escrow pertaining to said sale of said real property.” The judgment further declares that each party has waived any right to appeal from it or from any order made confirming the sale of the real property by the receiver, and it is approved in writing by the attorneys for the respective parties.

The receiver gave notice of a sale for cash, same to be consummated through an escrow. The property was struck off to defendant Miller for $277,500, subject to confirmation. In due course an order confirming the sale was made which recites the credits to be allowed the purchaser. It further declares that Miller had bid in the property for the account of Eureka Iron and Metal Company, whose president he was. The sale was confirmed to that company and the receiver ordered to consummate the same through escrow. This order was entered on October 5, 1956.

On December 12, 1956, the receiver filed a petition for instructions disclosing that he had received a deposit of $35,000 on account of the purchase price but that the purchaser had not given any escrow instructions, though twice requested so to do; it also alleged that Eureka claimed plaintiff Mendelsohn to be indebted to it and that it was entitled to a credit upon the purchase price of the amount of said alleged debt. The receiver also averred that Mendelsohn denied any indebtedness to the purchasing corporation.

Thereupon Eureka filed a petition alleging such indebtedness to be in the sum of $40,663.10, and praying a credit upon the balance of the purchase price ($242,500) of said alleged indebtedness of $40,663.10, and that the proceeds of sale be impressed with a lien in favor of Eureka to the extent of said alleged debt. This was followed by a motion of plaintiff to strike the Eureka petition.