Plunkett v. Hill

THE COURT. Motion to dismiss appeals. The complaint alleged two causes of action for damages—the first one was based upon alleged misrepresentation, and the second one upon alleged negligence. Each of the two defendants' alleged affirmative defenses of res judicata and estoppel as to each cause of action. Pursuant to the provisions of section 597 of the Code of Civil Procedure, a trial of those special defenses was had before the trial of any other issue in the case.

The court found: (1) That an order of a referee in bankruptcy has determined the issue alleged in the first cause of [86]action herein, and that said order acts as collateral estoppel and res judicata as to that issue; and (2) that said order has not determined the issue alleged in the second cause of action herein, and it does not act as collateral estoppel or res judicata as to that issue. As conclusions of law, the court stated that the plaintiff is barred from prosecuting the first cause of action; and is not barred from prosecuting the second cause of action.

A formal judgment, based upon those findings and conclusions, was entered on October 10, 1961. The judgment provided : ‘ ‘ That the first count of the complaint be and the same is hereby dismissed; and that the second count of the complaint remains for trial on the issues of negligence and damages; . . . .”

Each defendant has filed a notice of appeal stating that he appeals from the judgment on the second cause of action.

The plaintiff filed a notice of motion to dismiss “the appeal of Appellants.” The notice stated the motion is made on the ground that this court lacks jurisdiction to hear the appeal in that the judgment is interlocutory and not final. The notice was duly served on defendants. The motion to dismiss was heard by this court on October 23, 1962. Defendant Mr. Hill was not present or represented.

Section 597 of the Code of Civil Procedure provides: “When the answer pleads that the action is barred by the statute of limitations ... or sets up any other defense not involving the merits of the plaintiff’s cause of action but constituting a bar ... to the prosecution thereof, the court may . . . proceed to the trial of such special defense or defenses before the trial of any other issue in the case, and if the decision of the court . . . upon any special defense so tried ... is in favor of the defendant . . . judgment for such defendant shall thereupon be entered and no trial of other issues in the action shall be had unless such judgment shall be reversed on appeal or otherwise set aside or vacated; .... If the decision of the court . . . upon the special defense or defenses . . . shall be in favor of the plaintiff, trial of the other issues shall thereafter be had upon the motion of either party, and judgment shall be entered thereon in the same manner and with the same effect as if all the issues in the ease had been tried at one time. In such event any and all decisions . . . upon such special defense or defenses . . . shall be deemed excepted to and may be renewed on motion for a new trial or upon appeal from such judgment.” (It seems that the