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District Court of Appeal, Fourth District, California.

SUNSET INTERNATIONAL PETROLEUM CORPORATION, a corporation; Arthur Kahr; Sidney Barton; Maxwell Zabelle; Frank Dennison; Harold Brown; Myron Prinzmetal; G. A. Walker and Harry Friedman, Plaintiffs, v. Mark MORRIS and Irene Rush Morris, Defendants.

Civ. 6086.

Decided: March 22, 1960

Rex A. McKittrick, Beverly Hills, for plaintiffs. Francis B. Cobb, Los Angeles, for defendants.

Plaintiffs filed an action for declaratory relief involving rights of the respective parties in a gas and oil lease and amendments thereto between Santa Ana and Fresno Land Company, a corporation, lessor, and defendant Mark Morris, lessee, affecting certain land in Fresno County. Certain assignments and partial assignments are also involved.

After a hearing on the merits the trial court, on May 5, 1959, found generally that plaintiffs were in default with respect to the commencement of drilling upon 210 acres covered by the oil lease; that they were entitled to remedy such default by commencement of drilling on said acreage within a reasonable time, or, in the alternative, plaintiffs would be entitled to remedy the default by reassigning to defendants Morris or by quitclaiming to Santa Ana and Fresno Land Company, 60 acres selected by plaintiffs out of said parcel, with in a reasonable time; that in case of remedy of default, plaintiffs would hold the remaining 150 acres free and clear of drilling obligations to defendants herein. The court therein specially retained jurisdiction of the cause until plaintiffs remedied the default in compliance with the judgment entered.

On May 5, 1959 the court signed a so-called called amended judgment reciting that it amends and supplants a certain judgment entered on April 17, 1959. The latter amended judgment followed generally the findings above described, retaining jurisdiction of the cause until default remedied. It then provided that in the event plaintiffs followed the procedure prescribed by offering to reassign to defendants Morris 60 acres selected by plaintiffs, and in the further event that defendants should have any objection to the acreage so selected by plaintiffs, defendants might apply to the court to determine such objection within 30 days, and such application would extend the period of acceptance or rejection for a 30-day period after the determination by the court of such application.

Plaintiffs, on July 3, 1959, appealed from this so-called amended judgment entered on May 5, 1959. On July 7, 1959 defendants Morris also appealed from it. On May 11, plaintiffs offered to reassign to defendants a certain described 60 acres of land and defendants objected thereto. A hearing was had. On October 30, 1959, the trial judge signed an order (entered on the same day) overruling the objections and granting a 30-day period within which defendants might accept plaintiffs' offer to reassign a certain described 60 acres, and in case defendants accept it, plaintiffs should execute and deliver to defendants a reassignment of said real property not later than 10 days after plaintiffs receive notice of acceptance from defendants; that in case defendants fail to accept said offer within said period, plaintiffs should quitclaim and surrender said real property to defendant Santa Ana and Fresno Land Company within 10 days.

On November 18, 1959, defendants Morris appealed from this (judgment or order) of October 30, 1959 and therein also again attempted to appeal from the so-called amended judgment entered on May 5, 1959.

Plaintiffs now move to dismiss defendants' appeal dated July 7, 1959 from the so-called amended judgment of May 5, 1959 because the notice was filed more than 60 days after its entry. The motion should be granted without a determination as to whether that judgment was final or only interlocutory in character. Rule 2(a), Rules on Appeal.

Plaintiffs' counsel conceded the later appeal from the order or judgment of October 30, 1959 was within the time limit and effective as to that order. The motion to dismiss the appeal from the so-called amended judgment of May 5, 1959, again mentioned therein, should be granted. Rule 2(a), Rules on appeal. Motion to dismiss defendants' appeals from the so-called amended judgment of May 5, 1959 granted.

GRIFFIN, Presiding Justice.

SHEPARD and COUGHLIN, JJ., concur.

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