Shirley v. Cook

Plaintiff and respondent brought this action alleging generally that there was an oral agreement of partnership pursuant to which plaintiff and this appealing de

Defendant’s answer denies generally the allegations of the complaint, alleges that the general partnership to carry on certain farming operations did exist, and alleged that the real property involved was not partnership property but was, at all times, community property of defendant and his wife.

After trial, the court found generally in favor of plaintiff and that the “said property is an asset of the partnership”; was not the community property of defendant and his wife except as to defendant’s interest therein; that plaintiff did not discover title was taken in the names of defendant and his wife until shortly before the commencement of the action ; that the income therefrom, after deducting taxes paid by defendant, should be accounted for; that there never has been a complete accounting in connection with the real property but only with the partnership operations; that it is necessary that such an accounting be had; and that defendant be required to furnish such an accounting to the satisfaction of the court. It then provides that the “Court reserves jurisdiction to supervise the making of said final account and to pass upon said final account, and to do all other things necessary to effect a complete termination of the partnership relation and a winding up and distribution' of the partnership assets.” The interlocutory judgment so recites and reserves jurisdiction to approve and settle such account, to terminate

The ultimate effect of the interlocutory judgment was to declare that the real property and its income was partnership property. No disposition of the real property, according to the proportionate interest of each party, was attempted; no sale or partition was sought by the plaintiff, nor was it ordered in the judgment entered. The ultimate question of a final accounting and disposition of the respective interests in the partnership was continued for a further order and final judgment.

No provision is made in section 963 of the Code of Civil Procedure for an appeal from an interlocutory judgment unless by such interlocutory judgment no issue is left for future consideration except the fact of compliance or noneompliance with the terms of the decree. Where anything further in the nature of judicial action on the part of the court is necessary to a final determination of the rights of the parties, the decree is interlocutory. Prom such interlocutory decree no appeal lies. (See Bakewell v. Bakewell, 21 Cal.2d 224 [ 130 P.2d 975 ].) The facts in that case indicating that the decree entered was not an interlocutory decree are much stronger than in the instant ease. It was an action to dissolve a partnership. The trial court there found that during the existence of the partnership defendant obtained title to certain property. It ordered a division to be made of the cash and securities, in kind, and the remainder of the assets sold. It decreed plaintiff’s right to money due him from the partnership but left the amount thereof to be subsequently determined and to be incorporated in the final judgment. The court there held that in an action to dissolve a partnership a judgment is interlocutory and not appealable even though it directs the division of certain property in kind and the sale of other property, where it does not establish the proportional rights of the partners; where the judgment contemplates a further audit of partnership books to ascertain the amount due; and where it actually contemplates the making of payment of amounts found due upon the entry of a final judgment. To the same effect are Swarthout v. Gentry, 73 Cal.App.2d 847 [ 167 P.2d 501 ], and eases cited; and Heck v. Heck Bros., 57 Cal.App.2d 599 [ 134 P.2d 853 ], We therefore conclude that the interlocutory judgment here entered was not appealable.

Appellant’s only answer to this conclusion is that “The instant partnership dissolution action is essentially to effect

In the instant action the plaintiff does not seek a partition of the real property and the interlocutory judgment did not determine the respective rights and interests of the several parties, nor does it direct partition to be made. Defendant’s wife held record title to the property with defendant as a joint tenant. The procedure in partition actions is governed by section 752 et seq. of the Code of Civil Procedure. Therein it is provided that the interests of all parties to the action, known or unknown, must be set forth in the complaint and the rights of the several parties may be put in issue and determined in such action.

In Solomon v. Redona, 52 Cal.App. 300 [ 198 P. 643 ], it was held that in a suit for partition it is indispensable that all cotenants who have not united in the complaint be made parties defendant, for if one of the coowners is not bound by the decree the purpose of the suit fails of accomplishment since no one will then become a tenant in severalty.

If plaintiff is proceeding under this claimed theory or desires to dispose of the record title of defendant’s wife in and to the property, proper amendment to the complaint may be sought and the proper parties may be brought in which will allow a complete disposition of all interests involved upon a final judgment to be subsequently rendered.

Appeal dismissed.

Barnard, P. J., and Mussell, J., concurred.