Hood v. Verdugo Lumber Co.

WASTE, C. J.

Motion to dismiss appeal from certain orders and judgments.

This is an action for an accounting. The defendants Swanson and Verdugo Lumber Company answered and cross-complained. A money judgment was entered in their favor. Upon appeal therefrom the plaintiffs Hood filed a stay bond by the terms of which the Aetna Casualty & Surety Company undertook to pay the judgment or any part thereof in the event of an affirmance or a dismissal of the appeal. The District Court of Appeal, Fourth Appellate District, concluded that the trial court had improperly allowed interest prior to judgment. (127 Cal. App. 133 [15 Pac. (2d) 542].) It thereupon reversed the judgment with directions to the court below “to strike out the interest allowed prior to judgment and to enter judgment as before less this interest”. After the

remittitur

had gone down the cross-complainants moved for a new and corrected judgment in accordance with the directions of the District Court of Appeal. The motion was granted and judgment was accordingly entered January 19, 1933. New trial proceedings were not instituted. Notice of appeal was filed May 31, 1933, more than sixty days after the entry of the corrected judgment.

The purported appeal from the judgment must therefore be dismissed as having been taken after the expiration of the time provided therefor by law.

The attempted appeal from the order granting the motion for the entry of a corrected judgment must also be dismissed. Such an order is nonappeal able, the same being reviewable on appeal from the judgment.

Subsequent to the entry of the corrected judgment and after an execution thereon had been returned unsatisfied, the cross-complainants filed an affidavit looking to an examination of the judgment debtors (the plaintiffs Hood) and the surety on the prior appeal bond (the Aetna Casualty & Surety Company) with a view to ascertaining the nature and extent of the property deposited by said debtors with the surety as security for the bond furnished by the latter. The trial court on May 18, 1933, made and filed an order for

[560]

examination as prayed. On the following day an unsuccessful attempt was made to have the order for examination of debtors vacated and set aside. Hearing was had on the order for examination on May 24, 1933', at which time the parties appeared, were examined and discharged, no order apparently being made relative to the application of any money or property in discharge of the judgment. Inasmuch as the examination has been had and the matter is now moot, the appeal from the order refusing to vacate the order for examination of debtors must be dismissed.