Rochat v. Gee

Paterson, J. This action was commenced by the plaintiff, June 27, 1888, for a dissolution of the copartnership existing between himself and defendant, for the appointment of a receiver, and for an accounting and settlement of the affairs of the partnership, and on that day the respondent Sommer was appointed receiver, “ to take charge of, manage and control, and dispose of, under the direction of this (superior) court, all that certain real property belonging to the copartnership of Rochat & Gee, and to have charge of, manage, control, and dispose of all personal property of the said firm of Rochat & Gee, upon his executing the bond as such receiver in the sum of twelve thousand dollars and qualifying according to [356]law.” He qualified, took possession of the property of the firm, and for about one month operated a lumber-mill belonging to the firm. The defendant filed an answer September 15, 1888, admitting the fact of co-partnership, but denying the allegation on which plaintiff relied for the relief asked. On June 29, 1889, plaintiff filed a written abandonment of the cause, in the following words: “Now comes the plaintiff, and before the final submission of the above-entitled cause, the plaintiff hereby abandons said cause.” The register of actions showed the following entry: "June 29, 1889. Filing abandonment of cause by plaintiff.” But no judgment of dismissal was. ever made or entered, nor was any order of the court made in relation to the matter of abandonment. On September 2, 1889,- the court directed the receiver to file an account. The account was filed November 12,1889, and on November 29,1889, the defendant filed written objections to the allowance of several of the items thereof. After hearing the testimony of the parties, the court approved the account as filed, and from this order the defendant has appealed.

The filing of the written statement of abandonment, and'the clerk’s entry in the register of actions, did not operate as a dismissal of the action. (Code Civ. Proc., sec. 581; Page v. Page, 77 Cal. 83.)

Respondent has moved the court to dismiss the appeal on the ground that the order is not appealable. We think the motion should be granted.

The orders made before judgment which may be appealed from are named in subdivision 3, sections 939 and 963, of the Code of Civil Procedure. The order before us is not one of those specified in subdivision 3 of section 939, which is the same as subdivision 3 of section 336 of the Practice Act. (Adams v. Woods, 8 Cal. 315.) It is not a “special order made after final judgment,” because there has been no final judgment in the action. It cannot be one of the orders named in subdivision 3 of section 963, because that class embraces • only probate orders. (Estate of Calahan, 60 Cal. 232.)