Nesbitt v. Bruce Eells & Associates

HANSON, J. pro tem. Respondent moves to dismiss the appeal taken by appellant, who was the defendant below, on the ground that the judgment appealed from is not a final judgment.

The judgment which the trial court, in terms, designated as interlocutory declared that two written joint venture contracts were invalid; ordered the defendant to return forthwith to the plaintiff certain personal property involved in the joint venture; directed that an accounting be held before a referee named who was empowered to examine the parties and witnesses; directed the referee upon the taking of the account to submit his findings and conclusions to the court; and ordered that thereafter a “final judgment for the balance if any shown by the . . . accounting to be due shall be awarded to the party to whom such balance is shown to be owing.” The judgment further directed that the costs of the accounting should be borne equally by the parties and that the plaintiff “shall have judgment against defendant for his costs of suit in the sum of $20.25. ’ ’

The question for decision is whether the judgment entered below is to be regarded as final for purposes of review, where it contains a provision for future accounting, the result of which is to be embodied in a final decree. The answer to the question depends upon the meaning to be ascribed to the words “final judgment” as those words are used in the statute which permits an “appeal . . . from a final judgment entered in an action ...” (Code Civ. Proc., § 963, subd. 1.)

The common law allowed an appeal only after final decision, i.e.', after the last of all possible decisions in the progress of an action (Metcalfe’s Case, 11 Coke 38a [1614]). This rule followed by Chief Justice Marshall in 1835 in the ease of United States v. Bailey, 9 Pet. (U.S.) 267, 272 [9 L.Ed. 124], is likewise the rule in California. (Gunder v. Gunder, 208 Cal. 559 [282 P. 794].) The reason back of the rule as stated by Chief Justice Marshall is to prevent the delay and expense incident to repeated trials of error on appeal from various decisions reached, in the progress of an action, and to have instead one trial of error on appeal from final decision.

Appellant contends that the judgment should be regarded as a final" judgment despite the fact that the trial court des[372]ignated it as interlocutory, because the finality of the judgment appears from the imperative form of its provisions, as for instance, that “defendant shall forthwith return and deliver to plaintiff” certain personal property. The short answer to the contention is that the trial court would exceed its jurisdiction if it attempted to enforce the provision, if the judgment is interlocutory rather than final. That the judgment must be regarded as being interlocutory we think is plain under the controlling decisions in this state.