Finch v. Ekstrom , 115 Cal. App. 381 ( 1931 )

This appeal is from a judgment of nonsuit entered in an action to recover an attorney's fee for services rendered with relation to an industrial accident award, the amount sought being in addition to that found reasonable by the commission. From the reporter's transcript we note that at the conclusion of plaintiff's case on August 31, 1928, defendant moved for a nonsuit, to which the trial judge responded, after the motion had been argued: "It is the order of the Court that the motion be granted." In the clerk's transcript we find this order, entered in the minutes of August 31st, in these words: "Defendant's motion for a non-suit is by the Court granted." Thereafter, September 27th, extensive findings of fact and conclusions of law were filed and at the same time a judgment dismissing the action was made, which was entered the following day. Not quite a month later, October 23d, another set of findings was filed, but no judgment appears to have followed.

The appeal before us was taken December 21st from "the judgment made and entered . . . on or about September 27, 1928".

This appeal must be dismissed. [1] It is provided in section 581 of the Code of Civil Procedure that the entry in the minutes of an order granting a nonsuit is the final act in entering a final judgment, and there is no place thereafter for another judgment. (Henry v. Lingsweiler, (1927) 81 Cal.App. 142 [253 P. 357]; Bengel v. Traeger, (1929) 100 Cal.App. 526 [280 P. 538]; Lewis v. Hammond Lumber Co., (1931) 114 Cal.App. 390 [300 P. 49].) [2] As a reversal of the judgment appealed from, if that should be required, would be of no avail because the judgment of nonsuit (August 31st) would still be left undisturbed, this appeal presents only moot questions and should be dismissed. (Burks v. Bronson, (1922) 58 Cal.App. 143 [207 P. 1018].) The appeal is dismissed.

Conrey, P.J., and Houser, J., concurred.