Western Gulf Oil Co. v. Title Insurance & Trust Co.

BARNARD, P. J. The respondent has moved to dismiss this appeal on the ground that the order from which it was taken did not constitute a final judgment and was not appealable.

The action is one for declaratory relief and for services rendered. It was brought for the purpose of determining whether the defendant, as the lessor of certain oil land, was chargeable under the terms of the lease with its proportionate royalty share of the cost of dehydrating the wet oil, and to recover the amount claimed to be due in that connection.

[219]The defendant made a motion in the trial court asking that an order be made providing that the trial of the case should proceed “in the following manner, to wit: that it shall first be determined whether or not the defendant is liable under its contract for the payment of any dehydration costs, and in the event it is determined that liability exists that the matter be set down for further hearing at a time which will give the parties reasonable opportunity to prepare for the remaining issues.” This motion was made on February 18, 1946, at which time the parties filed a written stipulation agreeing that the motion should be granted. On the same day, a minute order was entered granting this motion in accordance with this stipulation.

On August 26, 1946, after a hearing on the issue of liability, the following order was entered in the minutes:

‘ ‘ The above entitled cause having been heretofore heard and submitted to the Court for consideration and decision and the Court after due consideration and being fully advised in both the law and the premises, it is hereby Ordered, adjudged and decreed that plaintiff be and is hereby declared to be entitled to charge defendant the proportionate part of the cost of dehydrating the oil produced on the premises involved herein. ’ ’

From the clerk’s certificate it appears “that a written judgment, in accordance with said order, has not been filed in this action, and that notice of entry of judgment is not on file in said action.” Notice of appeal from this minute order was filed by the defendant on October 15, 1946. The plaintiff has now moved to dismiss this appeal on the ground above stated.

While it seems probable that this appeal was taken largely as a precautionary measure, the appellant earnestly contends that this order constitutes a final judgment from which an appeal lies, because section 1060 of the Code of Civil Procedure provides that in an action for declaratory relief “the court may make a binding declaration of such rights or duties, whether or not further relief is or could be claimed,” and that “such declaration shall have the force of a final judgment.” It is argued that this “declaration” of rights and duties is thus made separable from any “other relief” sought, and given “the force of a final judgment”; and that it follows that the order in question is a final judgment within the meaning of section 963, Code of Civil Procedure. In effect, it is