Plaintiffs and appellants brought this action against defendants and respondents for dissolution of a joint venture or partnership and sought partition of real property, for an accounting and money judgment based thereon.
After trial, apparently no separate findings were made and signed. The court entered judgment on August 18, 1960, stating that the court does make, find and declare the parties to be joint possessors of an undivided one-half interest in a hotel. The property was subject to a trust deed with a balance due thereon of $5,159.30. Trustees were appointed to receive
"... this judgment is in the nature of an interlocutory judgment in that the Court reserves to itself jurisdiction to supplement or add to the same such further provisions as may be necessary to effect the sale of said property in partition."
On August 30, 1960, plaintiffs gave notice that they intended to move to vacate and set aside the judgment and seek relief under Code of Civil Procedure, sections 657 and 663, and to grant a new trial on certain stated grounds including insufficiency of the evidence to justify the judgment and by reason of the fact that in the accounting and computation of the amounts to be charged against plaintiffs, sums of money in excess of $5,000 to which plaintiffs were entitled and which were overlooked or not considered as proper credits.
On the motion for a new trial and motion, under Code of Civil Procedure, section 663, supra, the court, on October 27, 1960, entered a minute order denying the new trial but modifying the judgment.
On October 28, 1960, the court signed and entered a written "modification and amendment to judgment" reciting that: "The Plaintiffs' motion for a new trial and/or for relief under the provisions of section 663 of the Code of Civil Procedure came on regularly to be heard ..." and the court found that "an error in accounting had been made at the time of the rendition of the original judgment herein in the amount of $4250.00, Plaintiffs being entitled to a credit in that amount upon what they owe to Defendants, and that Plaintiffs are entitled to have relief under the provisions of section 663 of the Code of Civil Procedure."
It then ordered such portion of the original judgment
No appeal was taken from the judgment as entered on August 18, 1960. On December 27, 1960, plaintiffs appealed from the "judgment" entered on October 28, 1960, and from "the whole of said judgment." Motion to dismiss the appeal was presented to this court.
The record is not clear whether the trial court modified or amended the former judgment as a result of or under its powers to amend a judgment on a motion for new trial under Code of Civil Procedure, sections 657 and 662, or under sections 663 and 663a. It denied the new trial but did not directly dispose of the other motion either by granting it or denying it. Code of Civil Procedure, section 663, supra, recites that a judgment, when based upon findings of fact, may, upon motion by the party aggrieved, be set aside and vacated and another or different judgment entered when there were incorrect or erroneous conclusions of law not supported by the findings. Code of Civil Procedure, section 632, requires that the facts found and conclusions of law must be separately stated. It also provides for a waiver of them. In the instant case, the record rather indicates that there was a waiver of findings and conclusions and an agreement to enter only a judgment establishing the rights of the respective parties. Those sections appear to be inapplicable here under the facts stated. (Rounds v. Dippolito, 94 Cal.App.2d 412 [210 P.2d 893].)
We will therefore assume that the judgment was modified and amended under the motion for new trial. Code of Civil Procedure, section 662, provides for such modification in whole or in part, and that any judgment thereafter entered shall be subject to the provisions of Code of Civil Procedure, sections 657 and 659.
"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." (Citing California Machinery etc. Co. v. University City Syndicate,
On its face, the judgment appears to be interlocutory in some respects and a material departure from the first judgment entered.
Notice of appeal from the last judgment here entered, as amended, was filed December 27, 1960, and within 60 days from its entry on October 28, 1960.
Motion to dismiss appeal denied.
Shepard, J., and Coughlin, J., concurred.