McCarty v. Macy & Co.

Plaintiffs have appealed from minute orders denying injunctive relief in four companion cases and from a number of orders made during the trial.

For many years respondents have operated a grain mill in Red Bluff. The old plant was destroyed by fire in October, 1951, and was replaced by a new one which opened for operation in 1953. Appellants are the owners and occupants of homes in close proximity to respondents’ mill. Four separate actions were filed by appellants in which they sought to enjoin the operation of the mill on the ground that the noise and dust therefrom constitute an abatable nuisance and to recover damages. The four cases were consolidated for trial, and apparently by stipulation of the parties the issue as to whether appellants were entitled to damages was expressly reserved for separate trial before a jury, and the court proceeded to try the equitable issue presented by the pleadings. At the conclusion of the trial the court adopted findings of fact and conclusions of law in each case, finding in substance that there was some noise and dust from the plant but not sufficient to interfere with the rest or peace of mind of persons of normal health, condition and sensibilities; that appellants’ properties had not substantially depreciated in value as a result of respondents’ operation; and that the issue of damages having been reserved for determination by the jury at a separate trial the court made no determination on that issue. On the basis of the facts found the court concluded that the plaintiffs had plain, speedy and adequate remedies at law; that there had not been shown sufficient cause for injunctive or other equitable relief; that such relief should be denied and that the several plaintiffs should be allowed to pursue their remedies at law if so advised. The court stated that immediately following the conclusion of trial of issues of law or abandonment of such issues, then judgment would be entered denying equitable relief. No formal judgment was

Neither in the briefs filed prior to the oral argument, nor upon the oral argument, was there any discussion as to the appealability of the minute orders appealed from, but research by the court convinced the court that there was a grave question as to the appealability of said orders and the court thereupon requested counsel for the respective parties to file supplemental briefs addressed to that question. Respondents have filed a brief in which they argue that the orders appealed from are not appealable and that the appeals should be dismissed. Appellants, however, argue that the four appeals are well taken and should not be dismissed. It is appellants’ position that they are not prosecuting these appeals under subsection 1 of section 963 of the Code of Civil Procedure (appeal from a final judgment) but rather under that part of subsection 2 which reads, “From an order . . . refusing to grant ... an injunction.”

In each of the four cases involved in the instant appeal, the plaintiffs sought both an injunction and damages. They were of course entitled to a jury trial on the issue of damages but not upon the equitable remedy of injunction. (Pacific Western Oil Co. v. Bern Oil Co., 13 Cal.2d 60 [ 87 P.2d 1045 ].) They demanded a jury trial. The parties and the court appeared to be in doubt as to whether the issues as to the injunction and damages could be tried at the same time, but, apparently, by general agreement proceeded with the trial of the equitable issues. The court stated:

“. . . It follows as a matter of course that there is an issue there on the legal amount of damages. If we don’t try it now, it will still be open and will have to be tried by a jury, as long as the jury has been demanded, at some later date. . . . We will determine the equitable issues and if there are legal issues they could be submitted to a jury later. We could have the jury here and try the whole thing and I could try the equitable issues and then submit it to the jury but that might be wasting the jury’s time.”

“Although the matter is not mentioned by counsel for either side, it appears that the court should not have given a judgment herein until the final disposition of the entire cause. The law contemplates but one final judgment in a cause. As stated in the case of Nolan v. Smith, 137 Cal. 360 , 361 [ 70 P. 166 ], quoting from Stockton etc. Works v. Glens Falls Ins. Co., 98 Cal. 577 [ 33 P. 633 ] : ‘There can be but one final judgment in an action, and that is one which in effect ends the suit in the court in which it was entered, and finally determines the rights of the parties in relation to the matter in controversy. (Citing authority.) ’ See also Doudell v. Shoo, 159 Cal. 448 [ 114 P. 579 ], Middleton v. Finney, 214 Cal. 523 [ 6 P.2d 938 ], and Potvin v. Pacific Greyhound Lines, Inc., 130 Cal.App. 510 , 512 [ 20 P.2d 129 ].”

See also Crofoot v. Crofoot, 132 Cal.App.2d 794 [ 283 P.2d 283 ]; Murphy v. Fong Shuck, 151 Cal.App.2d 64 [ 311 P.2d 80 ].

Appellants argue that they have a right to prosecute their appeals under subsection 2 of section 963, which provides in part that an appeal may be taken from an order “granting or dissolving an injunction, or refusing to grant or dissolve an injunction.” We are convinced that the quoted language does not authorize an appeal under the circumstances shown by the record here, but that it is intended to apply to a preliminary or intermediate order denying or granting an injunction. We do not believe that it was intended to apply to a determination by the court, after the equitable issues had been fully tried, that an injunction should be denied and that after the issue of whether plaintiffs are entitled to damages was tried such a decree would be included in the judgment. Until the remaining issue of whether or not appellants are entitled to damages is tried and determined, or is abandoned, there can be no final