Hollar v. Saline Products, Inc.

3 Cal.2d 80 (1935) RUTH SUSAN HOLLAR, Respondent,

v.

SALINE PRODUCTS, INC. (a Nevada Corporation), et al., Appellants.

L. A. No. 14860. Supreme Court of California. In Bank.

April 1, 1935. Hansen & Sweeney, M. M. Holman and Goodwin J. Oppegard for Appellants.

Harry H. Parsons and George R. Maury for Respondent.

WASTE, C.J.

Based upon allegations of nonpayment of rent and royalties, and other breaches of a lease of a plant and real property, the plaintiff brought this action for cancellation of the lease, immediate possession of the property, and for judgment "for all rents and royalties due". The trial court found in favor of plaintiff on all the issues, and that the defendant "is indebted to plaintiff for rents [81] and royalties in excess of $___, that such excess can be determined only by an accounting by the defendants". Judgment was entered that plaintiff "have and recover from defendants the immediate, peaceful, undisturbed possession" of the entire property involved, and that the proper writ of possession issue; and that the sheriff of the county "place plaintiff in possession". It was ordered and decreed that the lease in question be canceled.

It was further ordered that a special master make the accounting found necessary to fix the amount due from the defendants, "report back to [the] court, and inform [the] court in what amount the defendants are indebted to plaintiff on account of said rentals and royalties; that the plaintiff do have and recover judgment against said defendants in the amount of such sum, which is hereafter to be inserted herein, in the sum of $___. ... That no stay of execution or of the issuance of the writ of possession shall herein be granted."

[1] The defendants appealed from the judgment, and plaintiff, as respondent here, moves to dismiss the appeal on the ground that it was prematurely taken, contending in support of the motion that no final judgment has been entered in the court below. Under the now accepted rule in this jurisdiction, the motion must be granted.