Aronson v. Levison (1905) · DecisionDepot

Aronson v. Levison

Name: California Superior Court Tentative Rulings
Creator: DecisionDepot
License: https://creativecommons.org/licenses/by-nc/4.0/

California Supreme Court Dec 18, 1905 No. S.F. No. 4374.Published

Before: Shaw, Van Dyke

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Holding. The court dismissed the appeal for lack of jurisdiction because the challenged order, which awarded $200 in compensation to a guardian ad litem, was not an appealable order after final judgment and did not meet the minimum monetary threshold for appellate review.

Issues

Whether an order directing a plaintiff to pay a guardian ad litem's fees, incorporated into a final judgment, is appealable as a special order after final judgment.
Whether the court has appellate jurisdiction over a money judgment for less than the statutory threshold.

Disposition. dismissed

Quotations verified verbatim against the opinion

“The appeal must therefore be dismissed, and it is so ordered.”

Synopsis

MOTION to dismiss an appeal from a portion of a judgment of the Superior Court of the City and County of San Francisco. J. M. Seawell, Judge.

The facts are stated in the opinion of the court.

Edward Mills Adams, and Charles W. Slack, for Appellant.

Opinion — Van Dyke

VAN DYKE, J.

This is a motion to dismiss the appeal. The appellant, plaintiff in the court below, brought an action to quiet title as to certain real estate in the city and county of San Francisco, and among the defendants in said action was Robert John Levison, a minor. On the application of the plaintiff in the court below to have a guardian

ad litem

appointed for said minor defendant, the court appointed George B. Merrill, an attorney in said city and county, as such guardian

ad litem.

After the hearing of the cause in the court below, before rendition of judgment, said Merrill, as guardian

ad litem,

applied to the court, upon notice to the plaintiff, to fix his compensation as such guardian

ad litem

of Robert J. Levison, minor. In accordance with said notice, the court, after hearing, the plaintiff being present, ordered that the plaintiff pay to said George B. Merrill the sum of two hundred dollars for his services as guardian

ad litem.

Thereafter the court entered judgment in favor of the plaintiff, quieting his title to the premises in question, and added to said judgment as part thereof the following, to wit: “And a guardian

ad litem

for said defendant Robert J. Levison, a minor, having been appointed in this action upon the application of said plaintiff, it is ordered that said plaintiff pay to said George B. Merrill, Esq., guardian

ad litem

as aforesaid, the sum of $200 for his services as guardian

ad litem.”

The plaintiff, as stated in his notice, ‘ ‘ appeals to the supreme court of the state of California from the part hereafter set forth of the judgment and decree heretofore duly given and made by said court in the above-entitled action, dated and filed May 15, 1905. . . . Said part of the judgment and decree so appealed from is in the following words and figures, to wit: [Then reciting the portion of the judgment already referred to, ordering the payment by the plaintiff to the guardian

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Concurrence — Shaw

SHAW, J.

I concur in the judgment dismissing the appeal. Properly speaking, the order making the allowance against the plaintiff for the services of the guardian

ad litem,

of the defendant Robert John Levison, appointed as such upon the motion of the plaintiff, is not a part of the judgment in favor of the plaintiff and against the defendants. Neither the other defendants nor the minor defendant were parties to the proceeding upon which said allowance was made. It was not allowed as part of the costs in the cause taxable in favor of the plaintiff, nor as costs in any sense, and the amount allowed was not in fact taxed as costs either against the plaintiff or the defendants, nor included in any judgment in favor of the plaintiff against the defendants. The case simply amounts to this: That the plaintiff procured Mr. Merrill to act in his behalf by taking the appointment of guardian

ad litem,

for a minor defendant in the action. For the services thus performed at plaintiff’s request the plaintiff would perhaps be responsible to the extent of their reasonable value. Whether or not the court has jurisdiction in the action in which such services are rendered to make an order fixing the amount of such services rendered by the guardian

ad litem,

and to make an order that the party-who procured the appointment should pay the amount fixed to the person who served as guardian

ad litem,

is a question which need not be here decided. There is an intimation to the effect that the court may have power to make such an allowance, against the estate of the ward in

Cole

Superior Court,

63 Cal. 90, [49 Am. Rep. 78]. Aside from this, I know of no authority on the subject. But even if the court has jurisdiction to make such an order, it is not a part of the proceedings between the plaintiff and the defendant. The guardian

ad litem

could perhaps maintain an independent action against the party procuring his appointment to recover the value of his services. The fact that the order was made in the course

[368]

of an auxiliary proceeding in the action in which the services were rendered makes it no more a part of the judgment as between the parties, or of an order after such judgment, than would be a judgment in an independent action to recover for such services. The reason why this court has no jurisdiction of the appeal in the present case is that the order is in effect an independent judgment in favor of George B. Merrill against A. Aronson for the sum of two hundred dollars in money, and that the jurisdiction of this court on appeals from money judgments is limited to cases where the judgment amounts to two thousand -dollars, and that the appellate jurisdiction of the district courts of appeal in such cases is limited to cases in which the judgment amounts to three hundred dollars and does not amount to two thousand dollars; and hence we can neither entertain the appeal in this court nor, under the provision of the late amendment to the constitution, transfer it to the district court of appeal for consideration in that court.

Beatty, C. J., Angellotti, J., and Henshaw, J., concurred in the opinion of Justice Shaw.

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Synopsis

Opinion — Van Dyke

VAN DYKE, J.

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Concurrence — Shaw

SHAW, J.

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