McAllen v. Souza

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[Civ. No. 9814. First Appellate District, Division Two. May 24, 1935.]

FRANCES McALLEN, as Administratrix, etc., Respondent, v. A. T. SOUZA, Appellant.

COUNSEL

Tinning & DeLap for Appellant.

Gerald F. Harrington for Respondent.

OPINION

Sturtevant, J.

As administratrix of the estate of Mary Souza the plaintiff commenced an action against the defendant for an accounting and to impress a trust on certain funds. After hearing some of the issues the trial court rendered a judgment which contained, among other provisions, the following:

"It is hereby ordered, adjudged and decreed that plaintiff, as administratrix of the estate of Mary Lucas Souza, deceased, is, as a result of the verbal agreement made between the said Mary Lucas Souza and the defendant that what money he made would be his, and what money she made would be hers, entitled to an accounting of the defendant of all sums of money, or things of value, now held in trust by said defendant, ... and that a just and equitable division of all of said property be made at the time said accounting is had. [7 Cal. App. 2d 131]

"That all of the property now held by the defendant and accumulated subsequent to the commencement of this relationship with Mary Lucas Souza be divided in such proportion as the labor, services, and cash advancement of defendant and deceased contributed to the whole." From that judgment the defendant appealed. [1] We think it is quite clear that the judgment was not a final judgment because it appears on the face of it that there are many issues yet to be heard and determined, that is, that there are many judicial acts yet to be done. Under such circumstances the judgment is not final and, except in those instances where the statute provides otherwise, an appeal may not be taken therefrom. (Hollar v. Saline Products, Inc., etc., 3 Cal. 2d 80 [43 PaCal.2d 273], and cases there cited.)

The appeal is dismissed.

Nourse, P. J., and Spence, J., concurred.