BAUER v. BAUER (1940)

Since the opinion was filed in this cause, appellant has substituted new counsel and has filed a petition for rehearing and an application for an order to take additional evidence.

We shall first consider the petition for rehearing. There is but one new point raised therein. Appellant now contends that “This court is without jurisdiction to hear or determine the instant appeal because the judgment from which the appeal was taken is an interlocutory and not a final judgment”. It is of interest to note that this contention is now made by the party who prosecuted the appeal and that the point was not previously suggested by any of the parties. A consideration of this contention requires the statement of further facts.

In the opinion heretofore filed we made but passing reference to the answer and cross-complaint of defendant S.A. Best or the portions of the findings or judgment relating to his claimed interest in the bonds. The trial court found that he had entered into a certain written agreement with plaintiff with respect to said bonds and by virtue of that agreement, the trial court decreed that he recover from plaintiff the sum of $2775; that he had a lien upon three of the bonds to secure the payment of said sum plus costs of sale; and that said three bonds be sold in the manner provided for the sale of pledged property and the proceeds be distributed as directed by said judgment. It was provided however that no proceedings to sell the bonds should be commenced until the expiration of ten days after the rendition of the judgment in order that defendant Bauer might within that time comply with the provisions of the decree and thereby enable plaintiff to pay said indebtedness from the proceeds of the redemption of the bonds. It was further decreed that in the event defendant Bauer failed to comply and the sale of the three bonds thereby became necessary, that plaintiff should recover from defendant Bauer an additional amount equal to the costs incurred in such sale.

Then followed the final paragraph of the judgment, upon which paragraph appellant relies in making the above mentioned contention. It read as follows: “This court shall retain jurisdiction of this cause and all of the parties who have appeared herein for the purpose of making such further orders as may be necessary to enforce the provisions of this decree and finally settling and determining the rights and obligations of each and all of said parties with respect each to the other and pertaining to those matters and things as to which this court has made its Findings of Fact and Conclusions of Law. After such settlement and determination, the court will render its final judgment herein and in said final judgment the amount of and division of costs will be fixed and adjudged as between each and all of the parties to this action.”

Said portions of the judgment were not mentioned in the opinion heretofore filed herein as there appeared to be no controversy concerning them. Appellant presented in his briefs only the points discussed in said opinion and no claim was then made that said portions of the judgment made the judgment interlocutory and non-appealable.

Our reading of the entire judgment, including said last paragraph, leads us to the conclusion that said judgment was a final judgment within the meaning of section 963 of the Code of Civil Procedure and that it was therefore appealable. It may be conceded that the last paragraph of the judgment indicated that another and “final judgment” was contemplated but we believe that this paragraph was inserted only out of an abundance of caution as the trial court expressly retained jurisdiction to “enforce the provisions of this decree”. The wording found therein to the effect that it retained jurisdiction for the purpose of “finally settling and determining the rights and obligations of each and all of said parties with respect each to the other and pertaining to those matters and things as to which this court has made its findings of fact and conclusions of law” did not render said judgment interlocutory under the circumstances. The judgment entered, based upon said findings of fact and conclusions of law, disposed of every matter in controversy between the parties. It is entirely apparent that it was intended to settle and did settle all of the issues that had arisen or might arise except perhaps such questions as might arise and require determination solely for the purpose of carrying an otherwise final judgment into effect. The nature of the judgment before us shows that no other questions could arise after the judgment was entered.

Such being the case, we believe that the view that said judgment was a final judgment is supported by the text, quoted with approval by appellant and found in 2 California Jurisprudence at page 139, which reads as follows: “The general test applicable in determining whether a judgment is final or merely interlocutory therefore, is that if anything further in the nature of judicial action on the part of the court is essential to a final determination of the rights of the parties, the judgment is interlocutory only. But if no further questions can come before the court after a judgment has been entered, except such as are necessary to be determined in carrying the judgment into effect, the judgment is final.” See Zappettini v. Buckles, 167 Cal. 27, 138 P. 696; Security–First Nat. Bank v. Superior Ct., 132 Cal.App. 683, 23 P.2d 1055.

We have examined the judgments under consideration in the authorities cited by appellant and find none of them similar to the one before us. It appears to us that the court would have had the jurisdiction which it intended to reserve without including any express reservation to that effect in the judgment. If such express reservation had been omitted there would have been nothing to give said judgment the semblance of an interlocutory judgment and we find nothing in the express reservation here which had the effect of converting it from a final judgment into an interlocutory judgment.

We now turn to appellant's application for an order to take additional evidence. This application presents an unusual situation.

The evidence which appellant seeks to introduce in this court is a letter which appellant claims was written to him by his father under date of May 29, 1918, and was delivered to him in January 1919. He states that said letter has been in his possession, being kept in his safe deposit box, at all times since January 1919. On the trial in 1936, appellant and his father denied the existence of any written memorandum relating to the bond transaction or the alleged trust. Appellant now states that he discovered said letter in his safe deposit box on September 20, 1937. He further states that his former counsel then told him that it was too late to use it and that it would be important only in the event of a new trial. No application with respect to said letter was made in this cause until April 15, 1940, being at a time following the filing of the decision of this court and following appellant's substitution of new counsel.

We are of the opinion that said application should be denied. It may first be pointed out that said application was not promptly made after the alleged discovery of the additional evidence. The letter was admittedly discovered by appellant in his own possession over two and one-half years prior to the time that said application was made. It is only in exceptional cases that appellate courts should grant an application to take additional evidence and we believe that a delay in filing an application until two and one-half years after the discovery of such evidence and until after the filing of an adverse decision should ordinarily be a sufficient reason for the denial thereof. A further reason exists, however, for the denial of the application before us. It does not appear that the production of said letter on the trial or during the consideration of the appeal would have changed the result either in the trial court or in the appellate court. At most, said letter merely tends to corroborate some of the testimony given on the trial and it appears to be in accord with plaintiff's theory which was sustained by the trial court. All parties agreed that the parties discussed the means of protecting plaintiff from harassment by the creditors of her former husband and that they all agreed to give the transaction at least the appearance of a trust with appellant as the named trustee. The registration of the bonds in the name of “O.W. Bauer, trustee for Alice R. Kitts” and the execution of any memorandum purportedly creating a trust was entirely consistent with this understanding. The real issue was whether the parties had actually intended to create a trust or had merely adopted the form of a trust as a “fiction and a sham” as claimed by plaintiff and as found by the trial court. Plaintiff claimed and the trial court found that her father had intended to make an unconditional gift of the bonds to plaintiff and that he delivered them to plaintiff for that purpose. The first paragraph of the letter now sought to be placed in evidence before this court reads as follows: “I have made a gift to your sister Alice R. Kitts of * (the bonds in question describing them in detail).” In other paragraphs of the letter are found references to the purported trust, which references were somewhat in line with certain oral evidence offered by appellant on the trial. The first paragraph, however, was entirely in line with plaintiff's theory and with the testimony of her father on the trial to the effect that he decided to help plaintiff “by giving her bonds enough to keep her in good circumstances and I also bought a house for her for a home”. Even if appellant should be permitted to introduce said letter in this court, we find nothing therein to justify the making of other and different findings from those made by the trial court or to justify a reversal of the judgment by this court.

In view of the conclusions which we have reached, it appears unnecessary to consider whether this is a proper case, in any event, for the taking of such additional evidence on application of the appellant under the rules laid down in Tupman v. Haberkern, 208 Cal. 256, 280 P. 970.

Appellant's application for an order to take additional evidence is denied and the petition for a rehearing is also denied.

PER CURIAM.