Opinion
Rehearing Denied March 5, 1964.
As Modified on Denial of Rehearing March 13, 1964.
Lawrence Norman, Beverly Hills, and Robert Haves, Los Angeles, for receiver, respondent and moving party.
G. G. Baumen, Los Angeles, for defendant and appellant.
Irwin Sandler, Beverly Hills, for plaintiff and respondent Selma Raff.
No appearance for plaintiff and respondent.
KINGSLEY, Justice.
On June 11, 1962, there was entered an interlocutory judgment of divorce--which has now become final--whereby the court granted a divorce to both appellant Benjamin Raff and respondent Selma Raff, made a disposition of stock, and divided personal property and life insurance policies. It also gave the parties 60 days from April 19, 1963, to file a stipulation with the court disposing of the remaining community property between them, or to present to the court a plan of sale. The decree provided that, in the event of the parties' failure to file such a stipulation within such 60 days, the remaining assets, consisting principally of four parcels of real property, would be sold by a court appointed receiver, with the proceeds of sale, after payment of all expenses, to be distributed equally between the appellant and respondent.
The parties not having made a division of the property between themselves, nor having presented to the court a plan for such disposition within the specified time, an order appointing a receiver was issued on June 28, 1963. This order was not appealed from and has long since become final, as has the interlocutory judgment of divorce.
On September 27, 1963, the receiver filed with the court a request for instructions as On November 14, 1963, the receiver filed another petition for instructions. On November 20, 1963, the receiver filed his First Account and Report, and petitioned for its settlement, along with receiver's fees, attorney's fees, and a request for employment of additional counsel. On December 4, 1963, appellant filed a motion to disqualify the judge, together with his objections to the receiver's account and report and petition for receiver's fees, attorney's fees and employment of additional counsel. On December 5, 1963, a minute order was issued, which reads in part as follows: 'Defendant's affidavit of Prejudice filed and the motion to have the case assigned to another court denied. Defendant's motion to continue is denied. * * * Attorney for plaintiff awarded $2,500.00 as attorney fees and $500.00 as costs payable from defendant's share of the property. Receiver's petition for additional instructions granted and Receiver is instructed re making payments. Defendant's objections to Receiver's 1st Accounting and Report are overruled and the Accounting and Report is [sic] approved. Interim fees of Receiver fixed at $7,500.00 and Interim fee of attorney for Receiver Fixed at $7,500.00. Motion of Lawrence Norman to associate Robert Haves as counsel for the Receiver is granted.' On December 11, 1963, appellant filed his notice of appeal from this order.
On January 13, 1964, respondent filed with this court a motion to dismiss the appeals taken from the October 17, 1963, minute order and from the December 5, 1963, minute order on the ground that the orders appealed from are non-appealable. Although there are two different appeals involved, we have consolidated them for purposes of this opinion since the same proceeding and similar legal issues are involved.
Except where otherwise indicated, references to 'respondent' are to respondent receiver.
APPEAL FROM MINUTE ORDER DATED OCTOBER 17, 1963
Respondent asserts that this order is non-appealable because (1) it is not one of those orders made appealable by section 963 of the Code of Civil Procedure, and (2) it is only interlocutory in nature since appellant can review this order on appeal from the final order made in connection with the receivership. On the other hand, appellant contends that it is a special order made after final judgment, and as such is expressly made appealable by subdivision 2 of section 963 of the Code of Civil Procedure.
I
The appealability of that portion of the order denying removal of the receiver.
While an order appointing a receiver is an appealable order (Associated Creditors' Agency v. Wong (1963) 216 Cal.App.2d 61, 30 Cal.Rptr. 705; West v. Parker (1950) 97 Cal.App.2d 286, 217 P.2d 473), no appeal lies from an order refusing to vacate such an appointment. (Title Ins. & Trust Co. v. California Development Co. (1911) 159 Cal. 484, 114 P. 838; Meis v. Collins (1934) 1 Cal.App.2d 433, 36 P.2d 662.) II
The appealability of that portion of the order instructing the receiver to sell three parcels, but not to sell the fourth.
The order of June 28, 1963, appointing the receiver, in part, provides:
'4. The Receiver shall undertake proceedings to sell the properties above enumerated and, upon his appointment, he shall, forthwith proceed to such sales.'
Appellant contends that that portion of the order instructing the receiver to sell three parcels and not to sell the fourth parcel, is a special order made after final judgment, and hence appealable. (Code of Civ.Proc. § 963, subd. 2.)
The first question to be decided is whether the order appointing the receiver, which has long become final, is a final judgment within the meaning of section 963, subdivision 2.
In Carradine v. Carradine (1946) 75 Cal.App.2d 775, at page 777, 171 P.2d 911, at page 912, the court stated: 'The term 'final judgment' is not limited to those decrees or decisions which finally determine all the issues presented by the pleadings. The term is equally applicable to a decree, order or decision which finally determines a collateral matter distinct or severable from the general subject of the litigation.'
Since the order appointing a receiver is an appealable order (§ 963, subd. 2), once the time for appeal has elapsed, it is a final judgment within the meaning and contemplation of section 963. As appellant points out, the interlocutory decree, unmodified in this respect by the order appointing the receiver, contemplated a prompt sale of all four parcels. The order herein appealed from, although in form an order delaying a sale, in reality converted this scheme into one for the sale of only three parcels and a receivership to manage a fourth and, by inference, to litigate the validity of a lease on that parcel. Clearly this modifies the earlier orders and, as such, is an order after judgment which affects the rights of the parties. It is, therefore, appealable at this stage.
III
The appealability of that portion of the order authorizing the receiver to make any payments due at his discretion.
Paragraph 8 of the order appointing the receiver, in part, provides: 'The Court reserves the right to make further orders to the Receiver on the making of accounts by him and disposition of funds by him.' [Emphasis added.]
Appellant in his memorandum in opposition to respondent's motion to dismiss, claims that that portion of the minute order of October 17 authorizing the receiver to make any payments due at his discretion, is an appealable order because it is a special order made after final judgment. Appellant calls this court's attention to that part of the interlocutory judgment of divorce which states: 'In said event [in case the parties do not come to some kind of agreement concerning the disposition of the property] the Court does hereby appoint * * * as receiver to sell the property at public or private sale to the highest bidder for cash. After said property is sold by the receiver and the Court fixes the fees of the receiver and settles the costs of the receiver's sale, * * * then whatever remains is ordered distributed equally between the plaintiff, Selma Raff, and the defendant, Benjamin H. Raff.'
However, before a special order made after final judgment can be appealable such order must affect the judgment in some manner. (Simmons v. Santa Barbara Ice and Cold Storage Co. (1958) 162 Cal.App.2d 23, 327 P.2d 141; Kaufman v. Brown (1951) 106 Cal.App.2d 686, 235 P.2d 632.)
It would appear that paragraph 8 of the order appointing the receiver is inconsistent with and contradictory to the above quoted portion of the interlocutory judgment of divorce. In effect, it constituted a modification of the interlocutory decree. However, since said order is now final, it is binding on this court. The minute order of October 17, insofar as it relates APPEAL FROM THE MINUTE ORDER DATED DECEMBER 5, 1963
I
Appealability of an order denying application to disqualify a judge.
No appeal lies from an order denying an application to disqualify a judge. (Briggs v. Superior Court (1932) 215 Cal. 336, 342, 10 P.2d 1003; Central Pac. Ry. Co. v. Superior Court (1931) 211 Cal. 706, 714, 296 P. 883.) Furthermore, a motion to dismiss a judge pursuant to Code of Civil Procedure, § 170.6 on the ground of prejudice, must be made before trial has commenced. Consequently, it cannot be entertained as to subsequent hearings which are a continuation of the original proceedings where the original and subsequent hearings are before the same judge. (MCCLENNY V. SUPERIOR COURT (1964) 60 Cal.2d ----, 36 CAL.RPTR. 459, 388 P.2d 691 ; Jacobs v. Superior Court (1959) 53 Cal.2d 187, 1 Cal.Rptr. 9, 347 P.2d 9; Thompson v. Superior Court (1962) 206 Cal.App.2d 702, 23 Cal.Rptr. 841.) If such procedure were allowed it '* * * would make it possible for litigants to gamble on obtaining a favorable decision from one judge, and then, if confronted with an adverse judgment, allow them to disqualify him without presenting facts showing prejudice, in the hope of securing a different ruling from another judge in supplementary proceedings involving substantially the same issues.' (Jacobs v. Superior Court, supra (1959) 53 Cal.2d 187, 191, 1 Cal.Rptr. 9, 11, 347 P.2d 9, 11.)
60 Adv.Cal.Rep. 663.
II
Appealability of an order refusing a continuance.
No appeal lies from an order refusing a continuance. (Miller v. Miller (1945) 26 Cal.2d 119, 126, 156 P.2d 931; Marx v. McKinney (1943) 23 Cal.2d 439; 443-444, 144 P.2d 353.)
III
Appealability of the order awarding respondent's attorney $2,500.00 attorney fees and $500.00 costs, payable from appellant's share of the property in the hands of the receiver.
Respondent wife argues that an order which merely directs how a receiver is to spend money in the operation of the receivership is a non-appealable order. (Title Ins. & Trust Co. v. California Development Co., supra (1911) 159 Cal. 484, 114 P. 838; Free Gold Mining Co. v. Spiers (1901) 135 Cal. 130, 67 P. 61; Illinois Trust & Savings Bank v. Alvord (1893) 99 Cal. 407, 33 P. 1132; Rochat v. Gee (1891) 91 Cal. 355, 27 P. 670.)
On the other hand, appellant argues that this is a special order made after final judgment which modifies the interlocutory decree of divorce, which awarded respondent's Fulton v. Fulton
Harron v. HarronIV
The remaining portions of the appeal from the December 5 minute order are from an interim order settling an account of a receiver and as such are not appealable. (Rochat v. Gee, supra (1891) 91 Cal. 355, 27 P. 670; Wilson v. Day (1952) 112 Cal.App.2d 598, 246 P.2d 996.)
Therefore: (1) the motion to dismiss the appeal from that portion of the minute order of October 17, 1963, which instructs the receiver to sell three parcels of realty and not to sell a fourth parcel is denied; (2) the motion to dismiss the appeal from all other portions of the said minute order of October 17, 1963, is granted; (3) the motion to dismiss the appeal from the portion of the minute order of December 5, 1963, which awards additional attorney fees and costs to the plaintiff is denied; (4) the motion to dismiss the appeal from all other portions of the said minute order of December 5, 1963, is granted. The matter of costs in connection with these appeals, including the allocation of costs with reference to the portions of the appeals hereby dismissed, is reserved for consideration at the time of decision of the portions of the appeals hereby retained.
BURKE, P.J., and JEFFERSON, J., concur.