RUTLEDGE v. RUTLEDGE (1953)

This is a purported appeal by defendant from an interlocutory decree entered in an action for partition of certain real and personal properties which the parties owned in joint tenancy.

Chronology

i. June 30, 1952, the trial judge signed and caused to be filed an interlocutory judgment (decree) in a partition action involving certain real and personal property owned by the parties jointly.

ii. July 15, 1952, defendant filed a notice of appeal from the decree.

iii. July 16, 1952, plaintiff filed a notice of intention to move for a new trial and to amend the findings of fact, conclusions of law and interlocutory decree.

iv. September 3, 1952, the motion for a new trial was denied.

v. September 4, 1952, amended findings of fact, conclusions of law and an amended interlocutory judgment (decree) of partition were filed. These documents made material changes in the original findings of fact, conclusions of law and decree, which had been entered July 2, 1952.

This is the sole question necessary for us to determine:

Was the interlocutory decree entered July 2, 1952, from which defendant attempts to appeal an appealable order?

No. The rule is established that where an amended judgment is entered after proceedings on a motion for a new trial and pursuant to the provisions of section 662 of the Code of Civil Procedure, which second judgment is a material departure from the first one entered, an appeal lies solely from the second judgment, the first judgment thus being nonappealable. (California Machinery, etc., Co. v. University City Syndicate, 3 Cal.App.2d 425, 428[3], 39 P.2d 853; Robinson v. Fidelity & Deposit Co., 5 Cal.App.2d 241, 242 [1], 42 P.2d 653; Replogle v. Ray, 48 Cal.App.2d 291, 293 et seq., 119 P.2d 980; George v. Bekins Van & Storage Co., 83 Cal.App.2d 478, 480[1], 189 P.2d 301.)

Since in the present case the amended findings of fact, conclusions of law and decree entered upon the denying of the motion for a new trial and pursuant to the provisions of section 662 of the Code of Civil Procedure, made material changes in the original findings of fact, conclusions of law and interlocutory decree, the purported appeal from the original judgment (decree) was from a nonappealable order.

The appeal is dismissed.

McCOMB, Justice.

MOORE, P. J., and FOX, J., concur.