Brown v. Trophy-Craft Co.

85 Cal.App.2d 246 (1948) CARL W. BROWN, Respondent,

v.

TROPHY-CRAFT COMPANY (a Corporation), Appellant.

Civ. No. 16393. California Court of Appeals. Second Dist., Div. Two.

Apr. 29, 1948. George Boshae for Appellant.

Borah & Borah for Respondent.

MOORE, P. J.

Respondent has moved the court to dismiss the appeal herein on the ground that the orders appealed from are not appealable. Simultaneously, appellant presents its petition for a writ of supersedeas "staying all proceedings including the taking of an account of defendant's books pending the final determination of the appeal."

[1] The bases of the motion for dismissal are that the judgment is interlocutory and that it can be reviewed on appeal only after the final judgment; that a judgment which fixes the liability and the rights of the parties but refers the cause for some judicial purpose such as the statement of an account is not a final judgment and is not appealable. Appellant contends that the correct rule for determining whether an interlocutory judgment is appealable is to ascertain first the nature of such decree. If a decree in equity is designated "interlocutory" yet directs a further hearing for certain [247] purposes, it may be an adjudication so final and complete as to constitute it a final judgment with reference to its appealability. If it is so complete that it leaves no issue for future consideration except compliance with its terms then it is final without regard to the designation given it by the court, but if further judicial action is necessary "to a final determination of the rights of the parties, the decree is interlocutory." (Bakewell v. Bakewell, 21 Cal.2d 224, 225 [130 P.2d 975]; Lyon v. Goss, 19 Cal.2d 659, 670 [123 P.2d 11]; Gunder v. Gunder, 208 Cal. 559, 561 [282 P. 794]; Hollar v. Saline Products, Inc., 3 Cal.2d 80, 81 [43 P.2d 273].) In Bessinger v. Grotz, 52 Cal.App.2d 379, 380 [126 P.2d 355, 127 P.2d 66], the above rule was approved, but the appeal was dismissed because the judgment decreed that plaintiff have leave to redeem, appointed a referee, and directed him "to take ... an accounting of all sums received by her ... from the use and occupation ... that when such accounting is and has been rendered and received and settled that a final judgment be entered, fixing, in accordance with the findings and conclusions of law herein, the sum for which said property may be redeemed..." In that case the findings did not state the amount received by the defendant under the contract or that the defendant had received no other sums for use and occupation of the land, leaving matters yet to be determined by the referee whose accounting required the court's approval. Such further judicial action destroyed the finality of the decree.