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District Court of Appeal, First District, Division 1, California.


Civ. 9396.

Decided: March 08, 1934

M. A. Ross, of San Francisco, for appellant. H. Raymond Hall, of Oakland, for respondent.

The matter before this court is a motion to dismiss the appeal from an order granting a new trial in an action tried before the court without a jury, a trial by jury having been waived. Respondent contends that the action is one in equity, and therefore there is no authority giving a right of appeal from an order granting a motion for a new trial. Section 963, subd. 2, of the Code of Civil Procedure, provides in part as follows: That an appeal may be taken “from an order granting a new trial or denying a motion for judgment notwithstanding the verdict in an action or proceeding tried by a jury where such trial by jury is a matter of right.” Therefore the question before this court is whether or not this is an action where the parties were entitled as a matter of right to a trial by jury, had such right not been waived.

The complaint alleges that on the 6th day of June, 1917, respondent and Patrick Cahill became the sole owners of the real estate and farm in controversy; that respondent owned an undivided one–third interest therein, but that the legal title to said property was vested in Patrick Cahill; that respondent originally invested $4,641.98 in said property, and on December 9, 1918, for the purpose of protecting respondent's interest therein in the event of the death of either party, the said Cahill executed and delivered to respondent a written memorandum to the effect that Cahill held one–third of said property in trust for respondent, subject to certain incumbrances, and subject to an accounting between them; that on or about May 1, 1921, it was agreed between respondent and said Cahill that said Cahill would continue to operate the business of said farm, and that he would dispose of it when a profitable disposal of same could be made, and would then account to respondent for the amount invested by him and for one–third of the net profits; that on or about May 24, 1929, Cahill disposed of said property, but that respondent had no knowledge of such disposal until June 25, 1931; that thereafter, on November 10, 1931, respondent filed his creditor's claim against the estate of Patrick Cahill, deceased. The prayer of the complaint is that appellant be required to account for the proceeds of said sale and of the profits arising from the operation of said property.

Appellant answered, denying the allegations of the complaint and alleging that on March 15, 1918, respondent had executed his deed to said Cahill for all his interest in said property and had given his receipt for all sums owing to him by Cahill on account of his interest in said property.

This appeal is brought upon the judgment roll alone, which consists of the pleadings and the notice of appeal. The nature of the action, whether legal or equitable, is to be determined by the pleadings alone (O'Dea v. Hibernia Savings & Loan Soc., 119 Cal. App. 622, 7 P.(2d) 318; Woolsey v. Woolsey, 121 Cal. App. 576, 9 P.(2d) 605), particularly where we have nothing before us but the judgment roll. It appears from the pleadings that this action is one to declare a trust, and for an accounting, and is therefore an equitable action and one in which a trial by jury is not a matter of right. (Dean v. Midland Farms Co., 96 Cal. App. 214, 274 P. 71; Nason v. Shinjo, 72 Cal. App. 530, 237 P. 559; Cauhape v. Security Savings Bank, 127 Cal. 197, 59 P. 589).

Therefore, there being no authority authorizing an appeal under these circumstances, the appeal is dismissed.