Jardine, Matheson & Co. v. Pacific Orient Co.

Respondent moves to dismiss the appeal herein upon the ground that the order from which it was taken is not appealable. The determination of the motion involves the construction of section 1293 of the Code of Civil Procedure, which is' one of several code sections enacted by the legislature in 1927 relating to the enforcement of agreements to arbitrate controversies growing out of written contracts (Code Civ. Proc., secs. 1280-1293, incl. [(Stats. 1927, p. 404, sec. 1), secs. 1281-1290 (Stats. 1927, pp. 404-407, secs. 2-11), secs. 1291-1293 (Stats. 1927, pp. 407, 408, secs. 12-14)]).

The essential portions of those sections are as follows: Section 1280 declares that “a provision in a written contract to settle by arbitration a controversy thereafter arising out of the contract or the refusal to perform the whole

In the present ease the record discloses that appellant entered into a written contract with respondent to sell and deliver to the latter a certain quantity of wood oil, which contract provided, among other things, that any dispute arising thereunder should be submitted to arbitration immediately in the manner therein set forth. Thereafter and under the authority of section 1282 of said code respondent petitioned the Superior Court in and for the city and county of San Francisco for an order for the enforcement of the arbitration agreement, alleging that appellant had breached the contract to deliver said oil. Appellant demurred to the petition and moved for its dismissal, and the demurrer being overruled and the motion being denied, appellant answered, and afterwards amended its answer, and later certain portions of the answer were stricken out on motion of the respondent. A hearing was then had before the court sitting without a jury, and as a result thereof the court entered written findings, and in conformity with the findings granted an order directing the parties “to proceed with the arbitration of the controversy or dispute set out in said application, in accordance with the terms of said agreement. ...” Thereupon appellant appealed from said order.

Respondent contends that section 1293 was intended by the legislature to be all-embracing and restrictive in its effect, and that consequently since the order from which the appeal herein was taken is not one of those enumerated in said section, the appeal based thereon should be dismissed. We are of the opinion that this contention must be sustained.

Upon reading the text of the foregoing sections it becomes evident that the purpose of adding them to the code was to adopt for this state a complete scheme for the expeditious and summary enforcement of agreements to arbitrate, and to provide a judicial review of the proceedings taken pursuant thereto, after the matter of arbitration has been completed and the award has been made; and the fact that the legislature saw fit to specify in one code section the different

Appellant contends that regardless of the right of appeal given by section 1293, the legal proceeding authorized by said code sections constitutes a special proceeding of a civil nature, and that therefore under section 963 of the Code of Civil Procedure an appeal may be taken from any final order made therein; and in this connection it is claimed that the order complained of, directing the parties to proceed with the arbitration, is in its nature final. In support of such contention the case of People v. Bank of San Luis Obispo, 152 Cal. 261 [ 92 Pac. 481 ], is cited. The language of the decision in that case must be interpreted, however, in the light of the situation there existing, which, upon analysis, is shown to be entirely different from the one presented here. There the proceeding was brought in the name of the People against the bank and its directors pursuant to the provisions of the former Bank Commissioners Act (Stats. 1903, p. 368) to force the bank into liquidation. A judgment to that effect was obtained which, besides enjoining the bank from transacting any further business, appointed a receiver and directed the bank commissioners to turn over to a receiver all of the assets of the corporation for the purpose of liquidating its affairs. The act nowhere provided' for an appeal from any of the proceedings authorized to be taken thereunder. Nevertheless, the substantial rights of the bank being materially affected by the judgment, the bank took an appeal therefrom, which the People sought to have dismissed on motion. In ruling adversely upon the motion the Supreme Court first pointed out that the right of appeal is remedial and that in doubtful cases, where the substantial rights of a party are affected, the doubt should be resolved in favor of such right, and it was therefore held in effect that since the act contained no ex

Appellant asserts that the appeals thus granted are nevertheless inadequate to .review the trial court’s various rulings upon the sufficiency of the pleadings, and its findings and conclusions relating to. the validity of the contract and appellant’s alleged default thereunder. As will be noted, however, from reading the code sections above referred to, the court proceeding authorized to be taken thereunder is expressly declared to be of a summary character, and there is nothing contained in the provisions of said sections indicating that a defaulting party may interpose all or any of the dilatory pleas or file the same character of pleadings permitted to be interposed and filed in civil actions generally. On the contrary, section 1285 expressly provides that the “application . . . shall be heard in a summary way in the manner provided by law for the making and hearing of motions, except as otherwise herein expressly provided” (emphasis ours); and while, of course, a motion is subject to dismissal for legal insufficiency, or may be defeated on the merits by the introduction of legal evidence in opposition thereto, including affidavits, the issues of law and fact to be determined thereunder are not raised by demurrer and answer as in civil actions. And in any event, in view of section 1292, which provides that the judgment which shall be entered in an arbitration proceeding “shall have the same force and effect, in all respects, as, and is subject to all the provisions of law relating to, a judgment in an action ... ” it would seem that any court ruling made in pursuance of such proceeding affecting the sub

The New York -cases cited by appellant are not controlling here because the provision of the arbitration act of that state granting the right of appeal is entirely different from the one embodied in our code section 1293. It is there expressly provided that said act is subject to the general laws governing appeals in that state, while here the legislature has particularized the orders and the judgment from which appeals may be taken.

From the foregoing we conclude that the appeal herein is based upon an order which is not appealable, and that accordingly respondent’s motion must be granted and the appeal dismissed. It is so ordered.

Tyler, P. J., and Cashin, J., concurred.

A petition for a rehearing of this cause was denied by the District Court of Appeal on October 17, 1929, and a petition by appellant to have the cause heard in the Supreme Court, after judgment in the District Court of Appeal, was denied by the Supreme Court on November 14, 1929.

All the Justices concurred.