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District Court of Appeal, Third District, California.


Civ. 6606.

Decided: July 31, 1941

Bartlett & Kearney, Alfred L. Bartlett, and Wm. B. Gilroy, all of Los Angeles, for appellant. Russ Avery and Harmel L. Pratt, both of Los Angeles, for respondent.

In this proceeding, the facts being the same as set forth in Lyon v. Goss, Cal.App., 115 P.2d 886, in which an opinion was this day filed, appellant is appealing from the final judgment entered in the action brought for declaratory relief.

The objection made by appellant arose out of certain actions taken by the trial court on August 23, 1939, after the entry of the interlocutory judgment and decree of March 3, 1939, with the exception of the objection to the action of the court in inserting provisions in the interlocutory decree which were not present in the provisions of the contract upon which the action was originally brought.

The interlocutory decree was entered, March 3, 1939. Thereafter on April 14, 1939, appellant Goss applied for an order directing respondent Lyon to show cause why he should not be ordered to approve certain contracts for subleases submitted to him, and why the four months period fixed in the interlocutory decree should not be extended.

If this court is correct in holding as we did, in Lyon v. Goss, supra, that the so–called interlocutory judgment and decree of March 2, 1939, was a final judgment, appellant Goss not having appealed therefrom, cannot now attack the terms thereof, and cannot here present the question that the trial court erroneously inserted provisions in the first decree which were not present in the contract upon which the decree is based. The cases cited in our opinion in Lyon v. Goss, supra, seem to us conclusive upon that question, and need not be here repeated.

The trial court, upon the hearing of the motion, found that neither plaintiff nor defendant had complied with the terms of its decree, and held that the only issues triable in the action then before the court were those essential to a declaration of the rights of the respective parties under the contract, and held that the only relief to be granted was a declaration of the right of the parties as set forth in the interlocutory decree, and directed entry of final judgment.

If, as appellant argues, respondent herein should not be heard because he has failed to comply with the previous order of the court, the finding that neither have so complied seems to be an answer to appellant also.

Under section 1060 of the Code of Civil Procedure “the court may make a binding declaration of such rights or duties, whether or not further relief is or could be obtained at the time”. Here the court has decreed that neither party recover any relief of the other than a declaration of their respective rights. It was not necessary for the court to do more.

The judgment and decree are affirmed.