Olmstead v. West

[653]

COUGHLIN, J.

The plaintiffs brought this action to specifically enforce the provisions of a written option to purchase real estate allegedly exercised by them. The trial court found in favor of the plaintiffs’ contention and entered an interlocutory judgment which directed the defendant, within a specified time, to execute a good and sufficient deed conveying to plaintiffs the fee title to certain real property; to cause said deed to be placed in a designated escrow; and to furnish plaintiffs with a policy of title insurance showing title to said property to be vested in defendant free and clear of all encumbrances except as specifically noted; which also decreed that should the defendant fail to execute said deed within the time designated that the clerk of the court should execute such a deed on behalf of defendant and place it in the aforesaid escrow; which directed the plaintiffs to deposit designated sums of money in said escrow and which decreed a method of payment of the expenses and charges of this escrow and the cost of the policy of title insurance. The interlocutory judgment further provides: “That if the plaintiffs fail to deposit the aforesaid sums in escrow within ten days after delivery of the aforesaid deed in escrow, either by defendant or by the Clerk of this Court, then and in that event the complaint of the plaintiffs be dismissed and the plaintiffs be forever barred of the right of specific performance of the lease and option agreement and that the same be given up to be cancelled, ’ ’ and “... that this is an interlocutory judgment

only

and the Court hereby expressly retains and reserves jurisdiction of

all

proceedings until

final

judgment, in order to make

final

determination of the rights of the parties.” (Italics ours.)

In their brief the plaintiffs direct the attention of this court to the fact that the interlocutory judgment in question is not appealable. However, plaintiffs suggest that they do not press this point “vigorously” and “are willing that the matter be decided on this appeal rather than to have the appeal dismissed on such technical grounds, but desire to be protected from a later appeal from the final judgment which may be entered later. ’ ’