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119 Cal. App. 2d 112

Rutledge v. Rutledge

California Court of Appeal

Decided July 8, 1953

California Court of Appeal · decided 1953-07-08

Key passage — most relied on by later courts

““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 Syn dicate, Inc., 3 Cal.App.2d 425, 428 [3] [ 39 P.2d 853 ]; Robinson v. Fidelity & Deposit Co., 5 Cal.App.2d 241, 242 [1] [42 P.2d 653]; Replogle v. Ray, 48 Cal.App.2d 291 , 293 et seq. [ 119 P.2d 980 ]; George v. Bekins Van & Storage Co., 83 Cal.App.2d 478, 480 [1] [ 189 P.2d 301 ].)”

quoted by 1 later decision, including O'CONNOR v. Skelton

Relies on 83 Cal. App. 2d 478 - George v. Bekins Van & Storage Co. · Replogle v. Ray · 3 Cal. App. 2d 425 - California MacHinery & Supply Co. v. University City Syndicate, Inc.

Good law ✅— No negative treatment on recordhow we know

Decided 1953-07-08

How this case has been cited

Cited by 13 later decisions — most recently March 1988

13 state decisions

701953196019701980decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

View the full empirical analysis of this case →

McCOMB, J.

¶1This is a purported appeal by defendant from an interlocutory decree entered in an action for partition of certain real and personal properties which the parties owned in joint tenancy.

¶2Chronology

¶3i. June 30, 1952, the trial judge signed and caused to be filed an interlocutory judgment (decree) in a partition action involving certain real and personal property owned by the parties jointly.

¶4ii. July 15, 1952, defendant filed a notice of appeal from the decree.

¶5iii. July 16, 1952, plaintiff filed a notice of intention to move for a new trial and to amend the findings of fact, conclusions of law and interlocutory decree.

¶6iv. September 3, 1952, the motion for a new trial was denied.

¶7*113v. September 4, 1952, amended findings of fact, conclusions of law and an amended interlocutory judgment (decree) of partition were filed. These documents made material changes in the original findings of fact, conclusions of law and decree, which had been entered July 2, 1952.

¶8This is the sole question necessary for us to determine:

¶9Was the interlocutory decree entered July 2, 1952, from which defendant attempts to appeal an appealable order?

¶10No. 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. (California Machinery etc. Co. v. University City Syndicate, Inc., 3 Cal.App.2d 425, 428 [3] [39 P.2d 853]; Robinson v. Fidelity & Deposit Co., 5 Cal.App.2d 241, 242 [1] [42 P.2d 653]; Replogle v. Ray, 48 Cal.App.2d 291, 293 et seq. [119 P.2d 980]; George v. Bekins Van, & Storage Co., 83 Cal.App.2d 478, 480 [1] [189 P.2d 301].)

¶11Since in the present case the amended findings of fact, conclusions of law and decree entered upon the denying of the motion for a new trial and pursuant to the provisions of section 662 of the Code of Civil Procedure, made material changes in the original findings of fact, conclusions of law and interlocutory decree, the purported appeal from the original judgment (decree) was from a nonappealable order.

¶12The appeal is dismissed.

¶13Moore, P. J., and Fox, J., concurred.

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