ADAMS v. TALBOTT DUNGAN INTERVENER (1941)

Plaintiff appeals from an order granting defendant's motion to strike plaintiff's notice of appeal and to terminate proceedings on appeal.

On January 12, 1938, plaintiff commenced this action to quiet title to real property against defendant, who filed a general denial and a cross–complaint alleging that he was an aged man and that he had transferred the property to plaintiff upon a trust agreement for his benefit to be reconveyed to him when the property was cleared of debts. On April 13, 1938, Dungan, a creditor of defendant, intervened to protect certain creditor's rights in any property in which defendant may have an interest. On January 14, 1939, the court in a memorandum decision decided that a trust existed in favor of defendant, and on March 22, 1939, the court made a determination of the issues presented in an accounting rendered by plaintiff. On June 19, 1939, the court filed its findings and conclusions of law based upon the former memoranda decisions and entered a judgment in accordance therewith. The judgment provided that plaintiff held the real property as trustee and she was ordered to reconvey it to defendant upon the condition that defendant pay certain moneys to her and to others; plaintiff was ordered to administer the trust faithfully until a reconveyance was had and she was to be allowed a reasonable compensation for her services; in the event that the defendant should fail to perform the conditions set forth within 90 days from the entry of judgment plaintiff would be entitled to a decree of the court quieting her title. Notice of entry of the judgment was served on plaintiff on June 21, 1939. On October 10, 1939, plaintiff filed a “First and Final Account of Trustee and Application to Settle Said Account and Dismiss Trustee”. On October 19, 1939, defendant served on plaintiff a demand for reconveyance in accordance with the judgment. On October 17, 1939, plaintiff filed a notice of motion for a judgment quieting her title upon the ground that defendant had not fulfilled the orders included in the judgment of June 19, 1939, requiring payment of certain moneys within 90 days. On October 23, 1939, the court denied plaintiff's motion by an order which stated that defendant had been ready, willing and able and had offered within the 90 days' period to comply with the conditions of the judgment; the plaintiff was ordered to reconvey the property pursuant to the judgment. On November 9, 1939, plaintiff filed a notice of appeal “from the judgment” rendered in favor of defendant, requested the clerk to prepare a transcript and gave notice that she would deliver the deed to the county clerk pursuant to the Code of Civil Procedure, section 944. On November 20, 1939, defendant moved to strike from the records plaintiff's notice of appeal, notice and request for a transcript and notice of deposit of the deed with the clerk, and for an order terminating the proceedings on appeal. The court granted this motion by its order on December 15, 1939, upon the ground that the judgment entered on June 21, 1939, was a final judgment and the time for appeal had expired. On December 22, 1939, plaintiff moved the court to vacate its order striking her notice of appeal and terminating the proceedings on appeal; this motion was made upon the ground that the judgment was only interlocutory and until the court made a final determination of all of the future conditions and acts imposed in it any appeal would be anticipatory and a nullity. The court denied plaintiff's motion on January 10, 1940. Plaintiff appeals from the order of December 15, 1939, which granted defendant's motion and ordered plaintiff's notice of appeal, notice and request for a transcript and notice of deposit of deed with the clerk stricken from the record and which further ordered that the proceedings in said court on appeal be terminated.

The order must be affirmed for these reasons: If the judgment of June 19, 1939, is interlocutory it is nonappealable. § 963, Code Civ.Proc. If it is a final judgment the notice of appeal filed on November 9, 1939, was too late. § 939, Code Civ.Proc. Appellant argues that the judgment was purely interlocutory, but that she “has presumed that the Judgment became final at the time of filing her appeal, after she had made her motion to quiet her title, and same had been denied”. This is a presumption in which we may not indulge. Appellant's motion was one similar to those authorized by section 663 of the Code of Civil Procedure for the entry of a different judgment. If that motion had been granted and a different judgment had been entered as demanded the appeal would lie from that judgment and not from the one entered on June 21, 1939. But the appellant has not appealed from the order denying her motion, and the merits of that motion are not involved in this proceeding.

The appellant also attacks the jurisdiction of the trial court to strike her notice of appeal and her request for a transcript from the records of the trial court. It is argued that this is a matter solely within the jurisdiction of the appellate court. But the notice of appeal was a nullity from the beginning and can serve no other purpose than to cloud the title to the property involved in the proceeding. The notice and request for a transcript related to a purported appeal which the court must deem not to have been taken. It is not necessary for us to decide whether jurisdiction to dismiss those proceedings rested in the appellate court alone. It is manifest from the entire record that the appeal must have been dismissed sooner or later and that the appellant has suffered no prejudice from the action taken by the superior court.

The order appealed from is affirmed.

NOURSE, Presiding Justice.

STURTEVANT and SPENCE, JJ., concurred.