Ouzoonian v. Vaughan , 64 Cal. App. 369 ( 1923 )

Counsel for the intervener-appellant prefaces his petition for a rehearing of the above-entitled cause with the statement that this court, in its judgment dismissing the appeal herein, evidently went off on an erroneous understanding of "the matters contained in the record on appeal." We had no misunderstanding of what the record contained. [3] Indeed, counsel for the intervener himself stated in his affidavit resisting the motion to dismiss, that he had "read the affidavit of M. F. McCormick and that the same is true." Said affidavit was filed in support of the motion to dismiss and if the facts therein stated are true, then there was no alternative left to this court but to grant the motion to dismiss the appeal, for it is therein and thereby plainly shown that, even if the judgment and the order really rendered and entered were, or either of them was, subject to appeal by the intervener, the latter's appeal was too late. But it appears that the judgment referred to affected the rights of the defendants only and not the rights of the intervener. Moreover, as shown in the original opinion, the judgment was rendered on the twenty-ninth day of November, 1922, and entered of record on the first day of December, 1922. If the intervener's rights had been affected by said judgment it is obvious, as pointed out in the former opinion, that his attempted appeal therefrom, on the twenty-eighth day of June, 1923, was too late and wholly nugatory. The order mentioned was made on the twenty-ninth day of November, 1922. If such order be appealable, and as to it the intervener was an aggrieved party, the attempted appeal was too late. Counsel, however, calls attention to findings and conclusions of law made by the court on June 23, 1923, whereby the court decided, and concluded, as a matter of law, that the intervener (appellant herein) is entitled to take nothing "by reason of his complaint in intervention," but, so far as the present record shows to the contrary, no judgment was ever rendered upon those findings and conclusions of law. [4] It is too obvious to require more than a mere statement of the proposition that an appeal does not lie from findings and conclusions of law or from either. But special emphasis is placed on section 939 of the Code of Civil Procedure as the same was amended by the legislature of 1915. (Stats. 1915, p. 205.) The particular provision of said section upon which counsel lays stress reads as follows: "No appeal, however, shall be dismissed on the ground that it was taken after the rendition of such judgment or order and before formal entry." We are unable to see what application said section has to the situation presented by the record before us. As stated, there was no judgment rendered upon the findings and conclusions of law filed on the twenty-third day of June, 1923, and which were the only findings and conclusions of law affecting the rights of the intervener or attempting to dispose of the claim made in his complaint in intervention.

It is not the duty of this court to point out the course which should be pursued in such circumstances, but it may not be improper to say that, if the court below has refused, and still refuses, to render a judgment upon the findings and conclusions of law made June 23, 1923, a ready remedy is available to the intervener for compelling the court to do so. Or, if in point of fact the court has rendered a judgment on said findings and conclusions of law, the same might have been included in the record here upon a suggestion of a diminution of the record. The alleged failure of the clerk to enter the judgment which counsel intimates was rendered on the findings and conclusions of law made June 23, 1923, is, in view of the provision of section 939 of the Code of Civil Procedure, above quoted herein, a matter of no consequence, in so far as the right of the intervener to take an appeal from said judgment is concerned.

The petition for a rehearing is denied.

Plummer, J., and Finch, P. J., concurred.